Edwards v. Metropolitan Life Ins. Co.

• Decision Date: 05 March 1940
• Docket Number: No. 25198.,25198.
• Citation: 137 S.W.2d 591
• Parties: EDWARDS v. METROPOLITAN LIFE INS. CO.
• Court: Missouri Court of Appeals

137 S.W.2d 591

EDWARDS v. METROPOLITAN LIFE INS. CO.

No. 25198.

St. Louis Court of Appeals. Missouri.

March 5, 1940.

Appeal from St. Louis Circuit Court; Joseph J. Ward, Judge.

"Not to be reported in State Reports."

Suit by Vera Edwards against the Metropolitan Life Insurance Company to recover accidental benefits under life policies. From a judgment in favor of the plaintiff, the defendant appeals.

Judgment reversed, and cause remanded.

Fordyce, White, Mayne, Williams & Hartman and R. E. LaDriere, all of St. Louis (Harry Cole Bates, of New York City, of counsel), for appellant.

Harvey Tucker, of St. Louis, for respondent.

BECKER, Judge.

Plaintiff, as named beneficiary in two policies of insurance issued by defendant company on the life of Floyd Taylor, brother of the beneficiary, filed suit to collect accidental death benefits provided therein, the insured having died on September 19, 1935, as the result of a stab wound inflicted by his wife Ruth Taylor.

The case was tried in October, 1938, in the Circuit Court of the City of St. Louis, and resulted in a verdict and judgment for plaintiff on each of the policies, together with statutory damages for vexatious refusal to pay and attorneys' fees, the total judgment amounting to $1,605.52. Defendant in due course appealed.

The defendant company had issued two policies of ordinary life insurance upon the life of Floyd Taylor. Each of the policies, in addition to conventional life provisions, provided that a like sum to that stipulated in the policy would be paid to the beneficiary should the insured meet his death through bodily injuries sustained solely through external, violent and accidental means, directly and independently of all other causes.

The company paid plaintiff the face value of the policies upon the proof of death of the insured, but refused to pay the double indemnity provided therein as for the death by accidental means. The grounds of the refusal to pay for accidental death was that the death of the insured was at the hands of his wife as a result of an altercation in which the insured was the aggressor.

Prior to the trial of the instant case below, a criminal charge against the wife arising out of her killing the insured had been tried, in which criminal case Ruth Taylor, the wife, had testified that on the occasion when she killed her husband, he had come home and she had asked him where he had been; that he stated he had been calling on his other woman; that an argument resulted in which her husband struck her, knocking her to the floor. She had further testified that it was a hard blow and that after she got up he struck her again, knocking her down; that when she got up the second time "he came toward me with a chair, saying he was going to kill me, and then I grabbed the knife off of the corner of the mantel-piece"; that he continued to approach and she was "afraid of her life at that time"; that her husband then hit at "me with the chair and I ducked the chair and then I struck him with the knife."

Thereafter counsel for defendant, in preparation for trial of the instant case, took the deposition of said Ruth Taylor, widow of the insured, and her testimony as to the killing of her husband was in direct conflict with her testimony given in her defense in the criminal case. At the taking of her deposition she testified that:

When her husband Floyd Taylor came home "he said he had been with this woman and that's all he said. * * * I started an argument. * * * He asked me to hush and I continued to argue. * * * Through the argument I got a knife and I accidentally cut him with the knife.

"Q. Did he strike you on that occasion? A. After I cut him.

"Q. I mean before you cut him? A. No, he didn't.

"Q. At the time of this argument, didn't he strike you? A. I cut him before he striked me.

* * *

"Q. You only struck him that one time? A. That is all."

In the deposition she further stated that:

He didn't strike her but that he "smacked me with his hand and one of his fingers hit me in the eye.

"Q. Did he try to hit you with a chair at any time? A. No, he didn't."

This deposition of Ruth Taylor discloses that though counsel for defendant claimed surprise and that she was a hostile witness, on objection of counsel for plaintiff he was not permitted to cross-examine the witness or to question her as to what testimony she had given at the criminal trial.

At the trial of the instant case below plaintiff made out a prima facie case and defendant, in its defense, adduced as witnesses two police officers who were called to the scene of the killing and arrived there but a few minutes afterwards. One of the police officers testified that Ruth Taylor at the time said, "I cut him; he was beating me and I cut him," and that she had a cut on her forehead over her eye, which was bleeding at the time; and that the room in which the killing had occurred "was topsyturvy, disturbed; the room was in disorder." The other police officer testified that he also had talked to Mrs. Taylor and asked her how the cutting occurred, and that she had said: "Well, he came home and was abusing me and he said he was out with this other woman and we had a fight and he knocked me down. I got the knife off the mantel and stabbed him, and he ran down the stairs." The police officer further testified: "I noticed two chairs overturned, one of them thrown up against the foot of the bed. * * * I noticed there was a mark on her—a cut over the left eye which was bleeding slightly. * * * She was taken to the hospital. * * * When she came back to the station she had a patch over her eye."

The plaintiff thereupon, in rebuttal for the purpose of contradicting the testimony of the police officers adduced by defendant, offered in evidence the deposition of Ruth Taylor which had been taken by counsel for defendant, adverted to above. Objection was made by counsel for defendant to the reading of the deposition on the ground that no showing had been made to warrant its introduction, whereupon counsel for plaintiff took the stand and testified: "I have been out to see Vera Edwards, the sister of Floyd Taylor two nights ago, trying to find out the whereabouts of Ruth Taylor; she did not know. I went out—I went to the mother of Ruth Taylor, who resides at 3639 Cook avenue, to find out the whereabouts of Ruth Taylor, and she didn't know where she was. I made every effort I could to produce her in court, but have been unable to locate her." Counsel for defendant objected that the testimony of counsel for plaintiff was not sufficient to permit of the introduction of the deposition in evidence; that no subpoena had been issued; and that the requirements of the statute (Sec. 1780, Rev.St.Mo.1929, Mo.St. Ann. § 1780, p. 4037) as to the use of the deposition, where the party lives in the city of St. Louis, had not been complied with. This objection was overruled and plaintiff permitted to read the deposition in evidence.

The action of the trial court in permitting the deposition of Ruth Taylor to be read in evidence over the objection of the defendant is here assigned as error prejudicial to the merits of the case. The point is well taken for in our view the deposition of Ruth Taylor was not available for use by plaintiff in the absence of compliance with the requirements of section 1780 of our statutes, which reads as follows:

"Sec. [§] 178...