Berryman v. Southern Surety Co.
| Decision Date | 15 December 1920 |
| Citation | 227 S.W. 96,285 Mo. 379 |
| Parties | BERTHA E. BERRYMAN v. SOUTHERN SURETY COMPANY, Appellant |
| Court | Missouri Supreme Court |
Appeal from Buchanan Circuit Court. -- Hon. Thomas B. Allen, Judge.
Affirmed (on condition).
Culver & Phillip for appellant.
(1) The insured did not meet death solely through external, violent and accidental means, and the trial court should have so instructed the jury. Taliaferro v. Travellers' Prot Assn., 80 F. 368; Lovelace v. Travellers' Assn., 126 Mo. 104; Meister v. Assurance Corp., 179 P. 913; Hutton v. Ins. Co., 267 Ill. 267, L. R A. 1915 E. 127; Price v. Occidental Ins. Co., 147 P 1175; Casualty Co. v. Curry, 65 So. 852. (2) The policy was not in force at the time of insured's death, because the first premium had not then been paid and the court erred in so refusing to instruct the jury. Bell v. Ins. Co., 166 Mo.App. 390; Pierce v. Ins. Co., 174 Mo.App. 383. (3) There was no evidence of vexatious delay and that question should not have been submitted to the jury and the verdict and judgment for penalties should be set aside. Non-Royalty Shoe Co. v. Phenix Assurance Co., 210 S.W. 37. (4) The court erred in admitting evidence as to the manner of payment of premiums on other policies which were not shown to contain a clause similar to the policy in question requiring payment of first premium before policy became effective. (5) The court should have instructed the jury as asked in defendant's Instruction F, that if the insured was killed by another while making an assault with a chair held in his hand on such other, then the plaintiff could not recover. Cases first above cited. (6) The court erred in using the terms "legal justification" in the instructions asked by plaintiff without defining their meaning. Turnbow v. Dunham, 272 Mo. 65; Montgomery v. Railroad, 181 Mo. 513.
Graham & Silverman and Strop & Mayer for respondents.
(1) The death of Berryman, resulting from the shots fired by Richardson, constituted death by accident, through external, violent and accidental means. Lovelace v. Ins. Co., 126 Mo. 104; Collins v. Fidelity & Casualty Co., 63 Mo.App. 253; Phelan v. Travelers Ins. Co., 38 Mo.App. 640; Casualty Co. v. Herroll, 98 Tenn. 591, 40 S.W. 1080; Accident Co. v. Carson, 34 L. R. A. 301. (2) The delivery of the policy to Berryman, with an express waiver of the payment of the premium by the authorized agent of the defendant company, put the policy in force. James v. Ins. Co., 148 Mo. 1; Crowder v. Ins. Co., 115 Mo.App. 540; Rudd v. Ins., 120 Mo.App. 1; Manning v. Ins. Co., 176 Mo.App. 688; Bell v. Ins, Co., 166 Mo.App. 398. (3) There was ample evidence of vexatious refusal to pay and this question was properly submitted to the jury. Fay v. Ins. Co., 268 Mo. 373; Glover v. Ins. Co., 193 Mo.App. 489; Kellogg v. Ins. Co., 133 Mo.App. 463. (4) The defendant having denied the agency of Nathan Evans, the admission of evidence showing the manner of payment of premiums on other policies, even though not shown to contain a clause similar to the policy in question, was not error, because such evidence was admissible to establish the relation of principal and agent between the company and Evans, if for no other purpose. (5) Defendant's Instruction F was properly refused. It was not justified by the evidence and does not require the jury to find either that Berryman was using the chair as an instrument of offense or that it was of a character likely to produce death or great bodily harm. Kouns v. State, 3 Tex.App. 13; State v. Harper, 69 Mo. 425; State v. Nueslein, 25 Mo. 111. (6) The use of the words "legal justification" in the plaintiff's instruction, without definition of the words, was not error. (7) In its Instruction 1, given for it, defendant used the terms "without any just cause or provocation," which is equivalent to the words "legal justification," used in plaintiff's instruction, and therefore the defendant cannot complain of the plaintiff's failure to define the term. Harvester Co. v. Spires, 223 S.W. 803; Anderson v. Sash & Door Co., 182 S.W. 819; Bettoki v. Coal & Mining Co., 180 S.W. 1023.
RAILEY, C. White and Mozley, CC., concur.
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, or 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-Seager-Vallery Company and engaged in the livestock business at the stockyards in St. Joseph, Missouri. Richardson was not present at the trial, but the testimony which he gave, in the case of State of Missouri vs. 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 off, 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 down stairs; that he finally reached the Transit House Cafe, 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:
On cross-examination, Richardson testified:
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:
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