Berne v. Prudential Ins. Co. of America

• Decision Date: 06 June 1939
• Parties: PANSY BERNE, APPELLANT, v. THE PRUDENTIAL INSURANCE COMPANY OF AMERICA, A CORPORATION, RESPONDENT
• Court: Missouri Court of Appeals

129 S.W.2d 92

235 Mo.App. 178

PANSY BERNE, APPELLANT, v. THE PRUDENTIAL INSURANCE COMPANY OF AMERICA, A CORPORATION, RESPONDENT

Court of Appeals of Missouri, St. Louis

June 6, 1939

Appeal from the Circuit Court of City of St. Louis.--Hon. William B Flynn, Judge.

AFFIRMED AND REMANDED.

Judgment affirmed and cause remanded.

Fordyce White, Mayne, Williams & Hartman and R. E. LaDriere for respondent.

Ralph W. Hyatt of counsel.

(1) The action of the lower court, in granting a new trial on the ground that it should have directed a verdict for the defendant at the close of the entire case, was proper. Bowdon v. Metropolitan Life Ins. Co., 85 S.W.2d 63; Landau v. Pacific Mutual Life Ins. Co., 305 Mo. 542 267 S.W. 370; New York Life Ins. Co. v. Gamer, 58 S.Ct. 500, 303 U.S. 161, 82 L.Ed. 480; Nichols v. New York Life Ins. Co., 292 P. 253, 88 Mont. 132; Mojcik v. Metropolitan Life Ins. Co., 124 Conn. 532, 1 A.2d 131; Berryman v. Surety Co., 285 Mo. 379, 227 S.W. 96, l. c. 98; State ex rel. Prudential Ins. Co. of Amer. v. Shain et al., 119 S.W.2d 309; McGuire v. Metropolitan Life Ins. Co., 164 Tenn. 32, 46 S.W.2d 53; Price v. Occidental Ins. Co., 169 Cal. 810, 147 P. 1175; 5 Couch, Ins., p. 4066; McKeon v. Nat. Cas. Co., 216 Mo.App. 507, 270 S.W. 707; DeMello v. John Hancock Mutual Life Ins. Co., 281 Mass. 190, 183 N.E. 255; Burt v. Union Central Life Ins. Co., 187 U.S. 362, 23 S.Ct. 139, 47 L.Ed. 216; Piotrowski v. Prudential Ins. Co., 141 Misc. 172, 252 N.Y.S. 313; Rousseau v. Metropolitan Life Ins. Co., 11 N.E.2d 921; Fabian v. Prudential Life Ins. Co. of America, 249 N.Y.S. 1, 139 Misc. 640; Manno v. Metropolitan Life Ins. Co., 249 N.Y.S. 471, 139 Misc. 848; Price v. Business Men's Assn. of America (Ark.), 67 S.W.2d 186; Metropolitan v. Roma, 97 Colo. 493, 50 P.2d 1142; McCrary v. New York Life Ins. Co. (C. C. A. 8th), 84 F.2d 790; Harrison v. Prudential Ins. Co. of America, 54 Ohio App. 279, 6 N.E.2d 991; Walters v. Prudential Ins. Co. of America, 183 A. 897, 116 N.J. L. 304; Prudential Ins. Co. of America v. Overby's Admx. (C. C. A.), 251 Ky. 750, 65 S.W.2d 1006; Hope v. New York Life Ins. Co., 195 S.E. 110. (2) Where the motion for new trial sets up a number of grounds of error other than the one which the court assigned as a basis for sustaining the motion for new trial, such other grounds may be advanced on appeal to sustain the action of the trial court in granting a new trial. Steffen v. Equitable Life Assur. Society (Mo. App.), 64 S.W.2d 302; Barr v. Hays, 172 Mo.App. 591, l. c. 598, 155 S.W. 1095; Graefe v. Transit Co., 224 Mo. 232, l. c. 250, 123 S.W. 835; St. Charles Savings Bank v. Denker, 275 Mo. 607; Mitchell v. Poole, 68 S.W.2d 833; Smith v. K. C. Pub. Service Co., 328 Mo. 979, 43 S.W.2d 548; Manthey v. Kellerman Const. Co., 311 Mo. 147, 277 S.W. 927; Moore v. Ins. Co. (Mo. App.), 73 S.W.2d 297; Yuronis v. Wells, 322 Mo. 1039, 17 S.W.2d 518; First National Bank v. Bristol (Mo. App.), 35 S.W.2d 999. Therefore, the lower court erred in failing to also allege, as a basis for granting a new trial, the following assignments in the motion of defendant: (a) That the court erred in giving and reading to the jury Instructions numbered 1, 2 and 3, in behalf of and at the request of the plaintiff. Compton v. Baker, 34 Mo.App. 133; Hatfield v. Swift, 174 Mo.App. 705, 161 S.W. 359; Champion Coated Paper Co. v. Shilkee (Mo.), 237 S.W. 109; James v. Insurance Co. of Illinois, 135 Mo.App. 247; Burtch v. Wabash Railway Co. (Mo.), 236 S.W. 338. (b) That the court erred in permitting counsel for plaintiff, in his argument to the jury, to explain the meaning of the accidental clause contained in the policy in his own way, and point out there was nothing contained therein regarding the commission of a crime or regarding any other defense which the plaintiff asserted, which had the effect of emasculating the instructions given by the court to the jury. Arnold v. May Department Store, 337 Mo. 727, 85 S.W.2d 748; Stout v. Kansas City Pub. Serv. Co. (Mo. App.), 17 S.W.2d 363; Beer v. Martel (Mo.), 55 S.W.2d 482; State ex rel. Highway Commission v. Bailey, 115 S.W.2d 17, l. c. 23; Chavaries v. Mutual Ins. Co. (Mo. App.), 110 S.W.2d 790, l. c. 793.

Julius L. Block, Cecil Block and Arnot L. Sheppard for appellant.

Mayhew v. T. P. A., 52 S.W.2d 29, 32; Gannon v. Lac. Gas Light Co., 145 Mo. 502, 516; Morton v. St. L.-S. F. Ry. Co., 323 Mo. 929, 20 S.W.2d 34, 42; Warren v. N. Y. Life Ins. Co., 182 S.W. 96, 98; Tinsley v. Wash. Natl. Ins. Co., 97 S.W.2d 874, 877; Smith v. Met. Life Ins. Co., 107 S.W.2d 808, 810-811; Wendorff v. Mo. State Life Ins. Co., 318 Mo. 363, 1 S.W.2d 99, 101; Beem v. Gen. Acci. Fire & Life Assur. Corp., 105 S.W.2d 956, 958; Bibbs v. Fidelity Health & Accident Co., 71 S.W.2d 764; Huselton v. Commerce Tr. Co., 64 S.W.2d 757; 6 Cooley's Briefs on Ins., page 5201; McDonald v. Triple Alliance Co., 57 Mo.App. 87; Jordan v. Logia Suprema de la Alianza Hispano-Americana, 23 Ariz. 584, 206 P. 162; Zurich Gen. Accident & Lia. Ins. Co., Ltd. (C. C. A. 4th), 33 F.2d 853; Prud. Ins. Co. v. Tidwell, 21 P.2d 28, 30; Home State Life Ins. Co. v. Russell (Okla.), 58 P.2d 562; Domico v. Met. Life Ins. Co. (Minn.), 253 N.Y. 538; Lovelace v. T. P. A., 126 Mo. 104.

McCULLEN, J. Hostetter, P. J., and Becker, J., concur.

OPINION

McCULLEN, J.

This suit was brought by appellant as plaintiff against respondent as defendant to recover the total sum of $ 540 and interest on two policies of life insurance issued by defendant insuring the life of Louis Berne, deceased, who was the son of plaintiff.

The suit was begun in a justice of the peace court in the City of St. Louis, and thereafter was appealed to the circuit court of said city, where it was tried before the court and a jury, resulting in a verdict in favor of plaintiff against defendant for the full amount sued for plus interest. Defendant's motion for a new trial was sustained on the ground that the trial judge had erred in refusing to sustain a peremptory instruction in the nature of a demurrer to the evidence requested by defendant at the close of the entire case. From the order of the court granting the new trial plaintiff has duly appealed to this court.

It is conceded that the two policies sued on were in full force and effect at the time of the insured's death. Each of the policies contains what is called a double indemnity clause, wherein defendant agreed to pay, in addition to any other sums due under the policies, and subject to the provisions thereof, an accidental death benefit equal to the face amount of the insurance stated in said policies, upon receipt of due proof that the insured "after attainment of age 15 and prior to attainment of age 70 has sustained bodily injury, solely through external, violent, and accidental means, occurring after the date of this policy and resulting in the death of the insured within 90 days from the date of such bodily injury while this policy is in force . . ."

The issue at the trial was whether or not plaintiff was entitled to the additional amount of insurance provided for on proof of death of the insured solely by external, violent, and accidental means.

It is not disputed that the insured was shot by one Leonard Lehmkuhl and died as a result thereof within less than ninety days thereafter.

Plaintiff contends that the order of the trial court sustaining defendant's motion for a new trial was erroneous. Counsel for plaintiff argue that the policies sued on having been introduced in evidence, and it having been shown that they were in full force and effect at the time of the insured's death, and evidence having been introduced by plaintiff showing that the death of the insured was caused by violence, plaintiff made a prima facie case which could not be overcome by any evidence that might be introduced by defendant. Defendant concedes that plaintiff made a prima facie case by the introduction of the policies containing the death by accidental means clause, and her own testimony; and further concedes that a presumption of accidental death arose from the proof of death by violence, but contends that such presumption was overcome by defendant's evidence which shows that the insured was engaged in the commission of a felony and that he was the aggressor at the time he was shot.

In addition to identifying the policies sued on and introducing them in evidence, plaintiff testified that she was the mother of Louis Berne, the insured; that the insured was nineteen years old at the time of his death; that, on the Sunday before Christmas, 1934, having been notified by a police officer that her son had been shot, she went to the hospital where she saw her son, and saw that he had been shot; that he died Christmas Eve, 1934. She admitted she had been paid by defendant the face amount of both policies.

At the close of plaintiff's evidence, defendant requested the court to give a peremptory instruction in the nature of a demurrer to the evidence, which the court refused to give.

Defendant then called as a witness Leonard Lehmkuhl, who testified that he and a Mr. Mozenski had been asked by Mr. Burcher proprietor of the Glasgow Cafe, 2831 St. Louis Avenue, in the City of St. Louis, to stay at the cafe to guard the place for him; that the cafe closed about 1:30 A. M. on December 23, 1934, after which he and Mozenski were stationed in the back room; that he heard the officer on the beat at the door of the cafe about a half hour after the place had been closed; that shortly thereafter there was a noise and the door flew open and Louis Berne (the insured) ran in and ran the whole length of the bar, then around back of the bar; that after Berne got in back of the bar, the witness walked out of the back room and called "Stop;" that Berne jumped...