Eagan v. Prudential Ins. Co. of America
| Decision Date | 06 March 1939 |
| Citation | 128 S.W.2d 1085,234 Mo.App. 295 |
| Parties | WILMA EAGAN AND WILMA EAGAN, AS ADMINISTRATRIX OF ESTATE OF JOE EAGAN, DECEASED, APPELLANT, v. THE PRUDENTIAL INSURANCE COMPANY OF AMERICA, RESPONDENT |
| Court | Kansas Court of Appeals |
Appeal from Randolph Circuit Court.--Hon. Aubrey R. Hammitt, Judge.
Judgment affirmed.
Hunter & Chamier and Jerry M. Jeffries for appellants.
(1) In a suit on a life and accident policy, where the insured is dead, and where a beneficiary had paid all the premiums to the agent with whom the insurance was taken out, and the company sends the same agent with a check to pay all or part of the amount due, the company is bound by any declarations or statements made by the agent at the time he delivers the check, because such declarations would be within the scope of his authority. To exclude evidence of such statements or declarations is error. Particularly where the objections were on the grounds that the agent did not have authority to bind the company. Roberts v. Wabash R. Co., 153 Mo.App 638; Roberts v. Wabash R. Co., 134 S.W. 89; Rayle Mining Co. v. Fid. & Cas. Co., 142 S.W. 438; Rayle Mining Co. v. Fid. & Cas. Co., 161 Mo.App 185; Plummer v. Knight, 137 S.W. 1019; Plummer v. Knight, 156 Mo.App. 321. (2) Where no issue is made by the pleadings that the plaintiff had failed to furnish death proofs; papers purporting to be death proofs are not competent evidence. Defendant's Exhibit A being a paper signed by Doctor Maddox and plaintiff, Wilma Eagan, and no part of same should have been admitted as evidence in the case. Hester v. Fid. & Cas. Co., 69 Mo. 193; Hilburn v. Phoenix Ins. Co., 140 Mo.App. 355; Bath v. Met. L. Ins. Co., 152 Mo.App. 87. (3) The insurance contract must be interpreted as written. If doubts exist in the construction of it, those doubts should be resolved in favor of the beneficiary and against the company. Refused Instructions A1, A2, B, C, D, E, G and I were proper under the policy and evidence in the case and it was error to refuse them. Lovelace v. Travelers Prot. Ins. Co., 124 Mo. 104; Collins v. Fid. Cas. Co., 63 Mo.App 255; Hester v. Fid. & Cas. Co., 69 Mo.App. 193; Strother v. Business Men's Assn., 188 S.W. 314; Gilman v. N. Y. Life Ins. Co. (Ark.), 79 S.W.2d 78; Gilman v. N. Y. Life Ins. Co., 188 Mo.App. 457; Meadows v. P. Mut. Life, 129 Mo. 76; Hunt v. U S. Acc. Assn., 10 Ann. Cas. 499; Banta v. Casualty Co., 134 Mo.App. 226. (4) If one starts a fight or goes into an encounter and then retreats as far as possible and is killed, as to him, the death is accidental. Refused Instruction F was proper and should have been given. Strother v. Bus. Men's Assn., 188 S.W. 314; Strother v. Bus. Men's Assn., 198 Mo.App. 633; Brink v. Purnell et al., 22 Ann. Cas. 829-831; Brink v. Purnell et al., 88 S.W. 451; Brink v. Purnell et al., 280 S.W. 30-36; Brown v. Supreme L. K. of P., 83 Mo.App. 637; State v. Webb, 216 Mo. 388; State v. Webb, 88 S.W.2d 425; Collins v. Fid. Cas. Co., 63 Mo.App. 253. (5) The intent of the officer who did the shooting had nothing to do with this case. At least the plaintiff is not bound by his intent. Under the instructions given, the jury could have and did consider that because Mize intended to shoot Eagan that the shooting was intentional, and not accidental. Had Instruction H refused, been given, the jury would have been told that the intent of Mize had nothing to do with it and they could and would have found for the plaintiffs. Strauther v. Bus. Men's Assn., 188 S.W. 314; Hutcrafts Ex. v. Ins. Co., 87 Ky. 300; Collins v. F. Cas. Co., 63 Mo.App. 253; Enk v. Fid. & Cas. Co., 253 S.W. 1029, l. c. 1036; Lovelace v. Trav. Prot. Ins. Co., 126 Mo. l. c. 116. (6) Instructions 3B and 4 given, we consider them together. They are not proper instructions if those refused were proper. McKennon v. Natl. Cas. Co., 216 Mo.App. 507; McKennon v. Natl. Cas. Co., 270 S.W. 707; Empire L. Ins. Co. v. Johnson, 40 Ann. Cas. 268; Nat. L. and Acc. Ins. Co. v. Jones, 86 S.W.2d 139; American Nat. Ins. Co. v. Garrison (Tex.), 9 S.W.2d 534; State v. Gooch, 105 Mo. 392. (7) The verdict and judgment is against the evidence and the weight of the evidence. Hester v. Fid. & Cas. Co., 69 Mo.App. 186; Banton v. Casualty Co., 134 Mo.App. 226; McDonald v. Triple Alliance, 57 Mo.App. 87; Lovelace v. Travelers Prot. Ins. Co., 126 Mo. 104; Jamison v. Continental Casualty Co., 110 Mo.App. 443; Moon v. Order United Com. Travelers, 40 Ann. Cas. 231. (8) The court erred in giving Instruction 4, because inconsistent. To say that one intends the natural and probable result of his acts and at the same time say that he did not anticipate such result is a contradiction. If such result was not anticipated by the insured, it was an accident as to the insurer within the terms of the policy. This instruction also assumed facts, the determination of which was for the jury. McKennon v. Natl. Cas. Co., 216 Mo.App. 507; McKennon v. Natl. Cas. Co., 270 S.W. 707; Empire L. Ins. Co. v. Johnson, 40 Ann. Cas. 268; Nat. L. and Acc. Ins. Co. v. Jones, 86 S.W.2d 139; American Nat. Ins. Co. v. Garrison (Tex.), 9 S.W.2d 534; State v. Gooch, 105 Mo. 392; Strother v. Business Men's Accident Assn. of America, 193 Mo.App. 718, 188 S.W. 314; Lovelace v. Travelers Protective Assn. of America, 126 Mo. 104, 28 S.W. 877. (9) The court committed error in refusing Instruction H, because it stated a correct principle of law as applied to the facts in the case, and, therefore, should have been given. Under policies such as that in question, anything not anticipated and not naturally to be expected by the insured as a probable result, though intentionally inflicted by another, is an accidental injury as to him within the terms of the policy. An act which is unforeseen and unexpected by the assured or which does not take place according to the usual course of things is accidental. Strother v. Business Men's Accident Assn. of America, 193 Mo.App. 718, 188 S.W. 314; Lovelace v. Travelers Protective Assn. of America, 126 Mo. 104, 28 S.W. 877; Phelan v. Travelers Ins. Co., 38 Mo.App. 640; Collins v. Fidelity and Cas. Co., 63 Mo.App. 253. (10) (a) Instruction A2, offered and refused, told the jury that if insured was killed from a pistol shot, the law presumed his death was by violent, external and accidental means. This was a proper instruction. It is declaratory of a correct principle of law, as outlined in the following decisions: Lovelace v. Travelers Protective Ins. Co., 126 Mo. 104; Strother v. Business Men's Accident Assn., 198 Mo. 718. (b) Instruction B, offered and refused, properly defined accident as applied to this case. The fact that the instruction had coupled with it a further proposition of voluntary assumed danger by insured was correct, because the defense was not that insured had voluntarily assumed a place of danger. There was nothing in the policy to relieve the defendant for such conduct and such was no defense. Collins v. Fidelity and Cas. Co., 63 Mo.App. 253; Strother v. Business Men's Accident Assn. of America, 198 Mo.App. 718. (c) Instruction C, offered and refused, was a proper instruction. By the contract the company agreed to pay if death was by violent, external and accidental means without regard to what he was doing at the time. McDonald v. Triple Alliance, 57 Mo.App. 87; Collins v. Fidelity and Cas. Co., 63 Mo.App. 253. (d) Instruction D, offered and refused, was a proper instruction. It told the jury that even though the insured was violating the law at the time he was killed, if his death was from violent, external and accidental means, the defendant was liable. The policy limited the liability only in event death came from accidental means, while engaged in the military service in times of war or in aviation as a passenger or otherwise. Strother v. Business Men's Accident Assn. of America, 198 Mo.App. 718; American National Ins. Co. v. Garrison, 97 S.W.2d 534. (e) Instruction E, offered and refused, was a proper instruction. It told the jury that it was immaterial how careless or negligent the insured might have been at the time he was killed. The policy simply says that if the insured received his death by violent, external and accidental means the company will pay. Nowhere does it say the insured shall do this or that, or not do this or that. Carelessness on his part is no defense. Lovelace v. Travelers Protective Co., 126 Mo. 104; Phelan v. Travelers Ins. Co., 38 Mo.App. 450; Collins v. Fidelity and Cas. Co., 63 Mo. 253. (f) Instruction G, offered and refused, was a proper instruction. It told the jury that if, while both parties were engaged in the alleged burglary, officer Mize appeared, and both or either knew the officer was armed, and Evans began to shoot at the officer, and they knew the officer would return the fire, and he did return the fire, the shooting of insured was accidental as to Eagan, unless the evidence showed that Eagan encouraged Evans to shoot at the officer, and that the mere presence of insured at the time of the attempted burglary or shooting at Mize would not justify a conclusion that insured encouraged Evans to shoot at the officer. This was a proper instruction under the evidence in this case. State v. May, 142 Mo. l. c. 153; State v. Croft, 338 Mo. 831, l. c. 841. (g) Instruction I, offered and refused, was a proper instruction. Plaintiff was entitled to have the jury told that what the insured was doing at the time of his death, if it was not anticipated by him, and was not naturally to be expected by him as a probable result of what he was doing, though the killing was intentional on the part of the officer, it was accidental as to insured under the terms of the policy. Lovelace v. Travelers Protective Ins. Co., 126 Mo. 104.
Hulen & Walden and Ralph M. Jones for respondent.
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