Di Paoli v. Prudential Ins. Co.
| Decision Date | 15 December 1964 |
| Docket Number | No. 31376,31376 |
| Citation | 384 S.W.2d 861 |
| Parties | Frances DI PAOLI, a/k/a Providenza Di Paoli, Plaintiff-Appellant, v. The PRUDENTIAL INSURANCE COMPANY, a Corporation, Defendant-Respondent. |
| Court | Missouri Court of Appeals |
James & Hasler, John D. Hasler, Edward J. Wynne, St. Louis, for plaintiff-appellant.
Lashly, Lashly, Rava, Hyndman & Rutherford, William I. Rutherford, Paul B. Rava, Oliver J. Miller, Paul R. Moody, St. Louis, for defendant-respondent.
This is an action brought by Frances Di Paoli to recover accidental death benefits under a policy of life insurance issued by defendant to plaintiff's deceased husband, Luigi Di Paoli. Plaintiff was the named beneficiary in said policy. There was a verdict for plaintiff in the amount of $1,000, the amount alleged to be due on the policy together with interest thereon in the sum of $155.00. Defendant in due time filed its motion for new trial together with a motion for judgment in accordance with its motion for a directed verdict. Thereafter, the court sustained defendant's motion for judgment in its favor, and at the same time entered an order that if said judgment be reversed by an appellate court defendant's motion for new trial was denied. From the judgment, plaintiff has appealed.
The face amount of the policy was $1000, and contained a provision that an equal amount was payable in the event of 'death by accidental means' as defined in the policy. The insured died October 6, 1959, while the policy was in full force and effect. The insurance company paid one thousand dollars, the amount of the life coverage, but refused liability for the accidental death benefit.
The petition alleged that on the 6th day of October, 1959, the said Luigi Di Paoli died as a result of a violent physical assault inflicted upon him on the 22nd day of September, 1959.
Defendant's answer pleads the 'accidental means' provision of the policy and avers that the death of the insured was not accidental within the policy provisions, since it resulted from his own misconduct, to wit, while he was an aggressor in a dispute wherein he was making threatening gestures with a gun.
Plaintiff's evidence consisted of the testimony of Dr. Martin J. Glaser who performed a postmortem examination of the insured's body on October 6, 1959; the hospital records of the City Hospital, the hospital records of the Missouri Pacific Hospital and the testimony of plaintiff's son. The testimony of the son throws no light on the cause of insured's death.
Dr. Glaser testified the insured died of a fractured skull which had caused profuse hemorrhage within the membrane that covered the brain; that he found four scars 3 1/2 inches in length above the ear extending to the midline and backward. The scars were freshly healed and showed about 25 or 30 suture marks. The entire brain was covered with blood, mostly clotted, and a considerable clot of blood extending down into the base of the brain from the parietal region to the occipital region and into the spinal cord. He further testified that there was a linear crack in the skull bone extending from about the middle portion of the parietal bone to the occipital, with considerable displacement or separation laterally, but, he could not determine whether it was caused by a single blow or multiple blows to the head. The scars ran vertically up the side of the head.
The admission record of the City Hospital showed that insured was admitted there on September 22, 1959. It also revealed the patient had multiple abrasions and a laceration of the scalp which went down to the bone exposing the cranial vault in several places. Under anesthetic sutures were applied.
Insured, who was an employee of the Missouri Pacific Railroad, was thereafter removed to the Missouri Pacific Employees Hospital. The record of that hospital was offered in evidence by plaintiff. It showed that Di Paoli was born September 6, 1889; that he was transferred on September 23, 1959, from the City Hospital, to Missouri Pacific Hospital; that he had a head injury; that x-rays revealed a badly comminuted fracture together with multiple lacerations of the left parietal, sphenoid and occipital portions of the skull; a one quarter inch depression of the left temporal and inferior parietal region extending to the base of the skull, and that on October 5, 1959, the patient expired.
John S. Farmer, defendant's witness, testified that during the evening of September 22, 1959, he was the bartender at 2350 North Market. At about 10:15 or 10:20 p. m., while he was talking to a customer, John Lindner, a stranger (later identified as the insured Luigi Di Paoli) entered the bar room, walked beyond Lindner, then turned around and without prior conversation pulled out a gun, cocked it and pointed it at Farmer, and threatened to kill him, saying 'I'll kill you' several times. He further testified that Lindner then began talking to Di Paoli in an effort to persuade him from using the gun, whereupon Di Paoli turned and pointed the gun toward Lindner. When this occurred, he (Farmer) came from behind the bar to a position behind Di Paoli intending to relieve the latter of the gun, but just as Farmer got in back of him Di Paoli turned on Farmer with the gun. Farmer then struck Di Paoli with his left fist around the temple. Di Paoli fell to the floor and in the process of falling struck his head either on the bar rail or a rung of a bar stool. As he was falling, Farmer relieved him of the gun. Farmer called the police immediately thereafter, and then laid the gun on a table where it remained until the police arrived. Farmer stated that he did not have anything in his hand when he struck Di Paoli; that Di Paoli was 15 to 16 inches away when he hit him; that Di Paoli fell hard; and that after he fell his head was eight to ten inches away from the rail which runs at the foot of the bar. On...
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