Crollard v. Northern Life Ins. Co.

• Decision Date: 13 January 1947
• Citation: 200 S.W.2d 375,240 Mo.App. 355
• Parties: Fred M. Crollard, Respondent v. Northern Insurance Company, Appellant
• Court: Kansas Court of Appeals

200 S.W.2d 375

240 Mo.App. 355

Fred M. Crollard, Respondent v. Northern Insurance Company, Appellant

Court of Appeals of Missouri, Kansas City

January 13, 1947

Delivered

Appeal from Circuit Court of Jackson County; Hon. Emory H. Wright Judge.

Affirmed.

Michaels Blackmar, Newkirk, Eagar & Swanson, Roy P. Swanson and Ralph M. Jones for appellant.

(1) There was a complete failure of proof on the primary issue in the case as to whether insured was "operating" an automobile at the time of receiving the injuries contributing to his death. Van Bibber v. Swift & Co., 286 Mo 317, 228 S.W. 69; Oglesby v. Mo. Pac. Ry. Co., 177 Mo. 272, 76 S.W. 623; Holliday v. Walls, 64 S.W. 2d 318; Haddow v. St Louis Public Service Co., 38 S.W. 2d 284. (2) The certificate of death was improperly admitted in evidence as being hearsay, signed by a deputy coroner rather than an attending physician, and incomplete. Patrick v. Employer's Mutual Liab. Ins. Co., 233 Mo.App. 251, 118 S.W. 2d 116; O'Donnell v. Wells, 323 Mo. 1170, 21 S.W. 2d 762; Thrower v. Life & Casualty Ins. Co. of Tenn., 141 S.W. 2d 192; Schmidt v. Supreme Council of Royal Arcanum, 207 S.W. 874. (3) The instruction offered on behalf of plaintiff defining the contract term "intoxicated or under the influence of intoxicants," as meaning that insured "must have taken enough intoxicants to have produced at the time he fell * * * an undue and abnormal condition disturbing the normal action of his physical or mental faculties," and requiring the defendant to prove by the greater weight or preponderance of the credible evidence that he was intoxicated to the extent defined, was erroneous. (4) The verdict was improper, not being responsive to the pleadings nor in compliance with the Code of Civil Procedure. General Code for Civil Procedure, 1943 Session Laws, p. 386, Sections 106-111, Incl.; Sec. 1134, R. S. Mo., 1939; Blair v. Acacia Mutual Life Ins. Co., 121 S.W. 2d 193.

Ira B. Burns for respondent.

(1) The court did not err in refusing to give the appellant's instruction for a directed verdict at the end of the case. Since the deceased died from injuries caused by falling from an automobile while attempting to detach it from another in order to drive it away, that is operating an automobile. Stewart v. Jeffries, 34 S.W. 2d 560, 224 Mo.App. 1050; Souders v. Commonwealth Casualty Co., 246 S.W. 613; Schorling v. U.S. Fidelity and Guaranty Co., 188 S.W. 2d 369; Union Indemnity v. Storm, 88 Ind.App. 562, 158 N.E. 904; Merklin v. Ind. Ins. Co., 214 Wisc. 23, 252 N.W. 280; Kennedy v. Md. Cas. Co. of Baltimore, 26 F.2d 501; Provident Life and Accident Ins. Co. v. Nitsch, 123 F.2d l. c. 603. (2) There was sufficient proof to submit to the jury the question of whether insured fell from the bumper of the car while attempting to loosen it from another automobile. Nomath Hotel Co. v. Kansas City Gas Co., 300 Mo. 240, 253 S.W. l. c. 981; Lorton v. Missouri Pac. Ry. Co., 267 S.W. 385, 306 Mo. 125; Peters v. Lusk, 206 S.W. 250, 200 Mo.App. 372; 3rd Edition of Wigmore on Evidence, Paragraph 667 A. (3) There was sufficient proof to submit to the jury that the insured died of injuries received in the fall mentioned in evidence, directly and independently of all other causes. Simpson et al. v. Wells, 237 S.W. l. c. 525, 292 Mo. 301; Hill v. Johnson, 178 S.W.2d 801; Muller v. Mutual Benefit Health & Accident Assn., 68 S.W. 2d 873, l. c. 880, 228 Mo.App. 492; Gass v. Evans, 149 S.W. 628, l. c. 633, 244 Mo. 329; State ex inf. v. Heffernan 243 Mo. l. c. 453, 148 S.W. 93; Sec 9767, R. S. of Mo., 1939; O'Donnell v. Wells, 21 S.W. 2d l. c. 766, 323 Mo. 1170; State ex rel. v. Atkinson, 271 Mo. 28, l. c. 42, 195 S.W. 741, 745; McCartney v. Shepard, 21 Mo. 573; Schmucker v. Spelbrink, 25 Mo.App. 356; Guinotte v. Egelhoff, 64 Mo.App. 356; Runyan v. Marceline Coal & Mining Co., 172 S.W. 1165, 186 Mo.App. 707. (4) The plaintiff need not prove the case beyond a doubt but only by the weight of the evidence and according to the reasonable probability of truth. Nomath Hotel Co. v. Kansas City Gas Co., 300 Mo. 240, 253 S.W. l. c. 981; (5) It was not error to give the plaintiff's instruction defining the contract term "intoxicated or under the influence of intoxicants," Reddick v. Northern Accident Co., 180 Mo.App. 277, 165 S.W. 354; 2nd Edition of Cooley's Briefs on Insurance, Volume 6, page 5356; 1 C. J., p. 457; Griffith v. Continental Casualty Co., 299 Mo. 426, 253 S.W. 1043; Aronovitz v. Arky, 219 S.W. 20. (6) The verdict of the jury was proper, and not in conflict with the Code of Civil Procedure. Rule 25 of the Circuit Court of Jackson County, Missouri.

OPINION

Dew, J.

This is an action for a declaratory judgment on an automobile accident policy written by the defendant in favor of Carl D. Higgins of Kansas City, Missouri. Plaintiff is assignee of the beneficiaries of the deceased insured. The issues of fact were submitted to a jury which found the same in favor of the plaintiff, whereupon judgment was rendered in favor of plaintiff for the face of the policy, to-wit: $ 5,519, with interest at 6 percent on past due installments; that is to say, $ 1400 for past due installments, plus $ 43.50 interest thereon, and $ 4119, payable at the rate of $ 100 per month on the first day of each month, beginning January 1, 1946, until paid. Execution was ordered for $ 1443.50 on the judgment aforesaid. From said judgment the defendant appealed.

The policy, No. B-219-943, issued December 15, 1938, insured Carl D. Higgins against loss of life resulting directly and independently of all other causes from bodily injuries sustained during the term of the policy, subject to conditions therein contained, and provided that if affirmative proof be furnished insurer "that death of the insured resulted from bodily injury effected solely through accidental means while the insured was operating, driving, riding in or cranking an automobile of the private passenger car type; * * * and that such death occurred within 90 days after such injuries were sustained," then insurer would pay $ 5519 to the beneficiary of the policy. Among the risks specifically excepted from the policy was the loss of life "while Insured is intoxicated or under the influence of intoxicants, drugs or narcotics; * * * or resulting directly or indirectly from bodily or mental infirmity, illness or disease of any kind". There is no dispute about the fact that the policy was in full force and effect at the time of the death of the said insured.

Defendant, in its answer, admitted its residence, its authority to transact business in Missouri, the issuance of the policy in question, and the death of Carl D. Higgins on May 18, 1940. It denied all other allegations of plaintiff's petition. The answer affirmatively pleads that "at the time insured died and at the time plaintiff alleges that the insured sustained injuries resulting in his death, the insured was intoxicated and under the influence of intoxicants, drugs or narcotics," and specifically denied, among other things, "that the death of the insured resulted directly and independently of all other causes from bodily injuries effected solely through accidental means while the insured was operating, driving, riding in or cranking an automobile".

Respondent moves for a dismissal of this appeal on the assigned ground that the appellant has not complied with Rule 1, Section 1.08, Subsection (a), Part 3, in that appellant has not specified any assignments of error in its brief. There are no assignments of error set forth in the appellant's brief separate and apart from its points and authorities. However, under its points specifications of alleged error are made for each point presented. This, we believe, substantially complies with the rule noted. The motion to dismiss the appeal is denied.

Plaintiff's evidence tended to show that Bertha L. Higgins, wife of the deceased insured, was the beneficiary named in the policy mentioned; that insured died May 18, 1940 in the General Hospital in Kansas City, Missouri; that under the terms of the policy, in the event of the death of the widow, Harwood O. Higgins would be paid the monthly installments of $ 100 thereunder until fully paid; that Bertha L. Higgins and Harwood O. Higgins executed and assignment of said policy on October 15, 1940, to the plaintiff; that insured was about 52 years of age at his death, was an engineer and contractor engaged in construction business on a project near Kansas City with the Kemper Investment Company.

Plaintiff's Exhibit 3 was the certificate of death, showing the death of insured May 18, 1940, and contained the following entries: "Immediate cause of death: Subdural cerebral hemorrhage; Due to Fracture of the skull; Due to Injury by unknown means".

Plaintiff's evidence further tended to prove that the insured went to his home for lunch on May 16, 1940, at which time there was no appearance of intoxication. He left to keep a business engagement, and appeared there entirely sober. He went again to his home and wrote checks in connection with his work, and while there was "absolutely sober"; he left home between 3:00 and 4:00 o'clock that afternoon and met an acquaintance down town, and the insured took him in insured's car to 38th and Main Streets. Throughout the drive the insured appeared entirely sober. He then entered the "Keg", a tavern adjoining the Netherlands Hotel, and there was no evidence that insured had taken any drinks at that time. About 7:30 later the same evening, he went to a restaurant, cashed a check for $ 10, and ate a steak; at that time he was completely sober; that about 8:00 o'clock that evening he met acquaintances near 38th and Main, talked with them a while, at which time he had no appearance of intoxication. Thereupo...