Camp v. John Hancock Mut. Life Ins. Co.

• Decision Date: 04 November 1942
• Docket Number: No. 26096.,26096.
• Parties: CAMP v. JOHN HANCOCK MUT. LIFE INS. CO. OF BOSTON, MASS.
• Court: Missouri Court of Appeals

165 S.W.2d 277

CAMP v. JOHN HANCOCK MUT. LIFE INS. CO. OF BOSTON, MASS.

No. 26096.

St. Louis Court of Appeals. Missouri.

November 4, 1942.

Rehearing Denied November 17, 1942.

Appeal from St. Louis Circuit Court; David J. Murphy, Judge.

"Not to be reported in State Reports."

Action by Florence E. Camp against the John Hancock Mutual Life Insurance Company of Boston, Mass., a corporation, to recover under the double indemnity provision of a life policy issued by defendant upon the life of plaintiff's husband. From a judgment for plaintiff, defendant appeals.

Reversed and remanded.

Leahy, Walther & Hecker, John S. Leahy, Jr., and Wm. O'Herin, all of St. Louis, for appellant.

John C. Casey and Mark D. Eagleton, both of St. Louis, for respondent.

BENNICK, Commissioner.

This is an action by plaintiff beneficiary to recover under the double indemnity provision of a policy of life insurance issued by defendant upon the life of plaintiff's husband, Henry S. Camp, who came to his death on November 30, 1938, as the result of injuries received in the course of an altercation with one Hartog, a fellow worker on a WPA project being carried on at Jefferson Barracks, Missouri.

Upon Camp's death defendant at once paid plaintiff the sum of $1,000 which was payable in all events as straight life insurance, but denied liability under the succeeding clause of the policy which provided (in so far as we are now concerned with it) that if the death of the insured was caused solely by external, violent, and accidental means, of which there was a visible wound or contusion on the exterior of the body, then and in that event defendant would pay an additional sum of $1,000.

Issue was joined between the parties upon the question of whether Camp's death had been caused by external, violent, and accidental means within the coverage of the policy; and at the trial of the case, which was to the court alone without the aid of a jury, the question was resolved in plaintiff's favor.

The judgment which was rendered was for the aggregate amount of $1,415, comprising items of $1,000, the principal sum sued for; $65 as interest; and further allowances of $100 as damages and $250 as an attorney's fee, both awarded as a penalty against defendant upon a finding of vexatious refusal to pay.

Following an unavailing motion for a new trial, defendant's appeal to this court has been perfected in the usual course.

The court, at the request of the parties, made a finding of facts, which was to the effect that Camp, at the time of the occurrence in question, was in charge of a warehouse at Jefferson Barracks; that Hartog, his fellow worker, brought some mess stools to the warehouse as a part of his duty on the project, and began unloading the same; that Camp and Hartog disagreed over the placing of the stools; that Camp was a large man, about six feet two inches tall, and weighing about two hundred twenty pounds, while Hartog was a small man, standing five feet seven inches tall, and weighing one hundred thirty-seven pounds; that Camp contended that the stools should be placed on the second floor of the building; that Hartog questioned Camp's authority, and continued to unload the stools on the first floor; that Camp's actions in using abusive language, and in advancing upon Hartog with his fists raised in a fighting position, led Hartog to strike the first and all succeeding blows; that Camp was the aggressor in the altercation; that neither man was armed with any weapon, and neither believed, or had reason to believe, that the other was armed; that there were no circumstances in the encounter, or in the provocation of the altercation, which would have charged Camp with reasonable anticipation that his aggression would be met by such forcible resistance as to put him in danger of death or great bodily harm; that after striking Camp a number of times, Hartog moved away for a considerable distance; that thereafter, after all blows had been struck, Camp fell over a stool and struck his head on the concrete floor of the warehouse; and that Camp died as the result of external and violent means producing injuries consisting of a traumatic cerebral hemorrhage, with visible evidence of blood and wounds on the exterior of the body.

From such facts the court concluded that Camp's death had been caused by external, violent, and accidental means as those terms were employed in the policy, and consequently entered judgment in plaintiff's favor.

Looking to certain of the details of the evidence from which the court made its findings, it was shown that Hartog struck Camp anywhere from ten to twenty blows, mostly on and about the head. The distance that Hartog had moved away from the immediate spot of the encounter before Camp fell to the floor was variously estimated at from ten to fifteen feet, eighteen to twenty-one feet, twenty-five to thirty feet, and twenty to forty feet. Camp apparently held his place as Hartog moved away, and, according to most of the witnesses, immediately afterwards picked up a stool as though to make use of it if the fight should continue. During all the time that Hartog's blows had been rained upon him, he had done no more than attempt to cover up by raising his arms to shield his face. As he endeavored to lift the stool, he reeled or swayed on his feet, and fell backwards over a stool sitting to the rear of him, striking his head "pretty hard" upon the concrete floor. If we read the testimony of one witness correctly, it was to the effect that it was not until Camp had fallen and struck the floor that blood started flowing from his head and ears. However another witness testified that at the conclusion of the fight, and before Camp's head had struck the concrete, he had observed blood flowing from Camp's mouth and temple. While the court, as we have already pointed out, made a finding that Camp's injuries were evidenced by blood and wounds on the exterior of his body, it made no finding with respect to the precise stage of the occurrence at which the blood and wounds were first to be observed.

Although defendant makes no point about the sufficiency of the evidence to have sustained the findings of fact which were made by the court, it does strenuously attack the court's conclusion that Camp's death was caused by accidental means within the coverage of the policy, and argues, as a matter of chief insistence, that the court, instead of rendering judgment in plaintiff's favor, should have peremptorily declared the law to be that under the pleadings and the evidence plaintiff was not entitled to recover.

It is now the definite rule of decision in this state that in the case of a policy (such as the one in question) which insures against death caused solely by external, violent, and accidental means, it is not enough to warrant recovery that the insured's death may be unusual, unexpected, or unforeseen and in such sense accidental, but that on the contrary it must be made to appear that the means (or cause) producing death were unusual, unexpected, or unforeseen and thus accidental. So it is that even though, as not infrequently happens, an unusual or unexpected result may occur by reason of the doing by the insured of an intentional act, nevertheless, if there has been no mischance, slip, or mishap in the doing of the act itself, the resulting death, though itself accidental in the sense of being unintended and unexpected, is not caused through accidental means as that term is employed in the policy. But conversely, if, in the doing of the act which precedes the death, something unusual, unexpected, unforeseen, or out of the ordinary occurs which produces the unfortunate result, then death is caused through accidental means, and the company is liable under its policy. Caldwell v. Travelers' Ins. Co., 305 Mo. 619, 267 S.W. 907, 39 A.L.R. 56; Pope v. Business Men's Assur Co. of America, 235 Mo.App. 263, 131 S.W.2d 887.

It is defendant's contention that the insured, having been the aggressor and the provocator in the fight, must be held to have committed an...