Berryman v. Southern Surety Co.

• Decision Date: 15 December 1920
• Docket Number: No. 20450.,20450.
• Citation: 227 S.W. 96,285 Mo. 379
• Parties: BERRYMAN v. SOUTHERN SURETY CO.
• Court: Missouri Supreme Court

227 S.W. 96

285 Mo. 379

BERRYMAN v. SOUTHERN SURETY CO.

No. 20450.

Supreme Court of Missouri, Division No. 2.

December 15, 1920.

Appeal from Circuit Court, Buchanan County; Thomas B. Allen, Judge.

Action by Bertha E. Berryman against the Southern Surety Company. From a judgment for plaintiff, defendant appeals. Affirmed on condition that plaintiff remit part of the judgment.

This action was commenced by plaintiff, as the widow of Johnson E. Berryman, deceased, in the circuit court of Buchanan county aforesaid, on December 14, 1916, to recover of above defendant, as beneficiary, on an accident policy issued by it insuring said deceased against death and injuries resulting from accident. The cause was defended on the ground that the policy sued on was never in force because no premium was shown to have been paid prior to the death of deceased, and also on the ground that death did not result, "directly and exclusively of all other causes, from bodily injury sustained during the life of this policy, solely through external, violent, and accidental means (excluding suicide, sane or insane, nor any attempt thereat)."

The policy is in ordinary form, and contains the language above quoted. It was issued January 9, 1916, for a term of one year. Deceased was killed by William Richardson February 18, 1916. Proof of his death was made in accordance with the requirements of said policy. Respondent is named as the beneficiary therein. The only witness who testified as to what occurred in respect to the killing was William Richardson.

Both Richardson and deceased were in the employ of Drinkard-Saeger-Vallery Company and engaged in the live stock business at the stockyards in St. Joseph, Mo. Richardson was not present at the trial, but the testimony which he gave in the case of State of Missouri v. Himself, wherein he was charged with the murder of Berryman, was offered in evidence by appellant, and, by stipulation, was used as the testimony of Richardson given in said cause. It appears from Richardson's testimony that deceased complained of statements made by Richardson, which the latter conceded he had made. A quarrel ensued, and Richardson testified that he started to leave the room; that deceased said, "By God, I will knock your damned block off," struck witness behind the ear, staggered him, and, as witness reached after his cap, which had fallen, deceased kicked him in the belly as he tried to get out. Richardson said he then went down the hall by the elevator, stopped for a second or two, and thought he would go back, but changed his mind and went downstairs; that he finally reached the Transit House Café, and found Rex Duncan there eating his dinner; that he asked Duncan for a gun. The latter went behind the bar, got a pistol, and asked Richardson what he wanted to do with it. He said to Duncan, "I just want to four-flush." He got the gun, put it in his left hip pocket, and walked out. The scabbard was on the pistol. He testified that he then went back to the office of his company and found Vallery and Berryman talking together. He said to deceased, "John, I would like to talk to you in the other room." Richardson turned, walked towards the room,"and says deceased remarked, "I will go any God damned place with you," and they both entered the room. Richardson, in chief, testified as follows:

"Q. What did he do when he came in the door? A. He walked in the room, pushed the door shut, and snapped the snap on. I said, `Set down, and let's talk this over; I think you and I can fix things up, and I believe I can convince you that you are wrong.' He grabbed the chair with his right hand and said, `God damn you, I have been wanting you here for a long time; I am going to knock your God damned head off.' He came at me with the chair. I ran my hand in my pocket. I was a little slow running my hand in my pocket, and he grabbed the gun with his left hand, and as he grabbed the gun I pulled the trigger. I think it was right against him. He dropped the chair and grabbed me by the arm with his right hand and threw me on the table. I said, `Stop, John.' I wrenched my gun from his hand and I shot twice-I didn't know—he went down on the floor, and I stepped around him and set the chair down, unlocked the door, went out, walked over to the telephone, and called my wife and said, `: am in trouble.'"

On cross-examination Richardson testified:

"Q. You thought it was necessary for you to get a gun for you to get along in a nice peaceable way. A. Yes, sir; I did. * * *.

"Q. What did you mean by `to make a four-flush'? A. Well, I wanted something with me to protect myself. I had already known I wasn't able to fight Mr. Berryman, and I felt I ought to have something to protect myself, if he assaulted me.

"Q. And when, you went back to talk to Mr. Berryman you felt you would need a gun? A. Yes, sir. * * *

"Q. What did you expect to do with the gun if you didn't expect to shoot? A. I expected to keep him off of me if he went to jump on me. * * * I thought I would talk to Mr. Berryman and try to adjust our matters in a nice, respectable way, and get into no fight and have no trouble. * * *

"Q. All you said to Mr. Berryman was, `I am ready to talk to you now, Jack; come in this room with me'? A. Yes, sir."

(Italics ours.)

Richardson testified that, when deceased entered the room, he (deceased) locked the door and put his hand on the chair; that he (witness) was at west end of table. He further testified:

"Q. You didn't offer to pull your gun then when he locked the door, did you? A. No, sir.

"Q. Where was this chair setting that Mr. Berryman took hold of? A. Well, I think it was setting at the typewriter that was in the room, right in the east corner.

"Q. You asked Mr. Berryman to get a chair and be seated, didn't you? A. Yes, sir. 0 0

"Q. After he put his hand on the chair, what did he do? A. I spoke to him and asked him to be seated, and he says `God damn you, I have got you where I want you; I am going, to knock your ______ ______ ______ block off.'

"Q. What did you think he was going to do when he put his hand on the chair? A. I didn't give that a thought. I didn't think what he was going to do.

"Q. There was nothing hostile about his putting his hand on the chair, was there, Mr. Richardson? A. No; not necessarily."

(Italics ours.)

He said Berryman was dead within three or four minutes after he entered the room. This witness further testified:

"Q. You say he had this chair, lifted over your head? A. No, sir; I didn't say any such thing. I said he had this chair in his hand; he was coming with it in his hand.

"Q. Was it up or down? A. He was coming up.

"Q. Describe how? A. He had hold of the chair and was coming with it.

"Q. Was it up or down? A. It was about even with his body or head.

"Q. Were the legs of the chair down or up? A. I kind of think the legs of the chair were down. * * *

"Q. Had you drawn your pistol at that time? A. When he started towards me with the chair, I drew my pistol.

"Q. What did you say to him? A. I didn't say anything until he had me on the table.

"Q. You had shot him before that? A. Yes, sir. * * *

"Q. Then you shot him twice after he had you in that position? A. I pulled the gun up in some way and shot twice. * * * "Q. When did Mr. Berryman drop the chair? A. Well, sir, I don't know that I can tell you, when he dropped the chair. He mast have dropped it when he got close to me."

(Italics ours.)

Deceased was blind in his right eye.

Dr. Lynch, the coronor, testified:

That deceased was shot in the breast.

"Q. Was that shot fired from the front or in the rear? A. It was fired from in front"

He said that either of the three shots would have caused death. He was shot in the neck and in the back of his head. He gave it as his opinion that the shot in the back of the head killed him immediately. He said deceased was a large, well-built man and weighed about 200 pounds.

The premium due on the policy at the time of its delivery was not paid, until several days after Berryman was killed. It was then paid to Nathan Evans, the agent who delivered the policy to deceased. The evidence relating to this subject will be considered later.

The case was tried before a jury, and resulted in a verdict for plaintiff for the face of said policy, $7,500, and interest, amounting to $557.57, together with $750 for vexatious refusal to pay, and $1,000 attorney's fees. Defendant, in due time, appealed the cause to this court.

The rulings of the court in respect to the admission and exclusion of testimony, the giving and refusal of instructions, as well as such other matters as may be deemed necessary, will be considered in the opinion.

Culver & Phillip, of St. Joseph, for appellant.

Graham & Silverman and Strop. & Mayer, all of St. Joseph, for respondent.

BAILEY, C. (after stating the facts as above).

We are called upon to. construe the insuring clause of the policy sued on, which reads as follows:

"(1) The effects resulting directly and exclusively of all other causes, from bodily injury sustained during the life of this policy, solely through external, violent and accidental means. * * *"

Under proposition 1 of its "Points and Authorities," appellant contends that:

"The insured did not meet death solely through external, violent, and accidental means, and the trial court should so have instructed the jury."

The following authorities are cited in support of the above contention: Taliaferro v. Travelers' Protective Ass'n, 80 Fed. 368, 25 C. C. A. 494; Lovelace v. Travelers' Ass'n., 126 Mo. 104, 28 S. W. 877, 30 L. R. A. 209, 47 Am. St. Rep. 638; Meister v. Assurance Corporation, 92 Or. 96, 179 Pac. 913, 4 A. L. R. 718; Hutton v. Insurance Co., 267 Ill. 267, 108 N. E. 296, L. R. A. 1915E, 127, Ann. Cas. 19160, 577; Price v. Occidental Ins. Co., 169 Cal. 800, 147 Pac. 1175; Prudential Casualty Co. v. Curry, 10 Ala. App. 342, 65 South. 852.

The opinion in the Taliaferro Case was written by...