SHAIN, P.J.
The plaintiff, the surviving widow of Robert L. Goucher, deceased, brings this action seeking to recover from defendant for the alleged accidental death of her said husband.
It is alleged that defendant issued to her deceased husband its policy and benefit certificate in consideration of premiums paid, and that plaintiff is the designated beneficiary.
The coverage clause in said policy involved herein is as follows:
"On account of injuries effected through Violent, External And Accidental Means, entirely independent of other causes, in case such injuries shall cause death within sixty days, or permanent and entire loss of sight of one or both eyes within sixty days, or shall immediately sever or within sixty days necessitate the amputation of one or both hands or one or both feet at or above the wrist or ankle, or cause total or partial disability, (provided that the Company shall not be liable for more than one indemnity specified for the same injury, nor for a greater sum in any case than the largest amount mentioned heretofore or hereafter), as follows:"
Plaintiff's petition alleges that the insured, while in due course of employment, slipped and fell and injured his spine, back and neck, spinal column and spinal cord, nerves and nervous system and within sixty days died from the injuries received in said accident.
The amount of coverage involved is $1000 and for this sum, together with attorney fees and penalty for vexatious delay, the plaintiff asks judgment.
By answer the defendant alleges itself to be a mutual Legal Reserve Company chartered and licensed in the State of Nebraska and licensed to transact insurance business in the State of Missouri as provided in Article 7 of Chapter 37 of Revised Statutes Missouri 1929, with all powers
and privileges specified and granted therein.
The defendant answers the allegations of plaintiff's petition by general denial. No reply is shown by the record to have been filed.
Trial was before a jury and jury verdict rendered as follows:
"We, the jury, find the issues for the plaintiff and assess her damages at the sum of $1,000.00 and her damages for vexatious delay at the sum of $100.00 and the sum of $150.00 as and for attorneys' fees and the further sum of $27.50 as interest at the rate of six per cent per annum from November 27, 1935.
"G.E. Graham, Foreman."
Judgment was entered in accordance with the verdict and from the judgment defendant has duly appealed and we will continue to designate the parties as plaintiff and defendant to conform with situation in trial court.
There is no contention as to issuance of policy, payment of premiums and proof of loss.
The defendant makes five specific claims of error, which we briefly state as follows: Admission of evidence. Giving of instruction one on part of plaintiff. Failure to give peremptory instruction. Giving of instructions three and five on behalf of plaintiff submitting for penalty and attorney fees. Permitting of improper remarks by plaintiff's counsel.
These assignments will be more fully explained in the opinion.
OPINION.
The error claimed in defendant's specification No. 1 presents a much discussed question, res gestae.
To a showing of the situation presented in the case at bar, we include herein the following proceedings bearing directly upon the question raised.
"Q. Now, Mr. Rhoads, did you notice Robert Goucher when he returned to the machine, after he had taken the load down to the John Porr farm? A. Yes.
"Q. Where were you, in reference to the machine, at that time? A. I was in my grain wagon at the machine.
"Q. Who was driving the truck that Mr. Goucher and Porr were in? A. Mr. Goucher.
"Q. Did he stop his truck there? A. He did.
"Q. Where did he stop it, in reference to where you were? A. To the side of my wagon, to the side of the machine.
"Q. Now, Mr. Rhoads, just tell the jury what you noticed about Mr. Goucher when he returned, if you noticed anything unusual in his actions and his condition when he got back. A. Well, I were in my wagon, scooping up the grain, and he backed into the side of my wagon to the machine, and when I noticed him he was by the truck, kind of holding to the truck.
"Q. Now, did you notice anything else unusual, whether he was pale, or not — whether or not he was pale? A. He was.
"Q. Now, from your observation of him when you saw him, what was your observation in regard to Mr. Goucher, whether he was in his usual and normal condition at that time or not? A. Well, I thought he was sick.
"MR. KAUFMANN: Wait just a moment — well, I will withdraw.
"THE COURT: Go ahead.
"MR. KAUFMANN: The answer was, `I thought he was sick.' A. He just looked as if he was sick.
"Q. Now, just tell the Court just what evidence you noticed on which you predicate your thought that he was sick, what was he doing, or what you noticed about him? A. Well, he was just kinda leaning against the truck, and very pale.
"Q. Well, now, did you have any conversation with him there at that time? A. I did.
"Q. Just tell the jury what you asked him and what he might have said in reply to it.
"MR. KAUFMANN: We object to that as hearsay.
"MR. ROBISON: Your Honor, we are ready to be heard on it, if you want to exclude the jury.
"MR. KAUFMANN: You are — certainly we want to exclude the jury. You are not going to try to say that that is part of the res gestae?
"MR. ROBISON: I certainly am, and I think I can show the Court I have got a right to show it, even if it was two hours after. Time is not the essence of the res gestae.
"MR. KAUFMANN: Well, we object —
"THE COURT: If you gentlemen want to be heard on it, I will excuse the jury.
"MR. KAUFMANN: Out of the hearing of the jury, in order that the Court may be fully informed concerning the subject-matter, the following questions were asked and the following proceeding took place.
"Q. (By Mr. Robison): Now, Mr. Rhoads, did you make a statement to Mr. Goucher at that time you saw him, that you have just testified about, in relation to his condition?
"MR. KAUFMANN: It is understood we are reserving our right to object to this as soon as we find out what it is about. A. When I seen the condition the man was in, I just asked him what was wrong with him.
"Q. (By Mr. Robison): What answer did he make to you? A. He said, I were in loading oats —
"THE COURT: A little louder. A. (Continuing): I went to throw in a scoop full of oats and my foot slipped and I wrenched my back.
"Q. And did he say anything as to the effects it had on him when his foot slipped? A. He said, `It made me awfully sick.'"
It was shown in the examination that the grainery to where the grain was taken was approximately two and one-half miles.
On cross-examination, while the jury was out, the following is shown:
"Q. As I understand it, it is your opinion from your knowledge of the geographical location of these farms — knowing these farms as you do — and where they are located, and knowing the gates and all of that, it is your opinion it takes about forty or fifty minutes to go from the one farm where he got the oats, to where he unloaded them, is that right? A. How's that?
"Q. It takes about forty or fifty minutes to go from the machine to where they unloaded the grain? A. Yes, practically that.
"Q. In other words, to go down there and come back and unload the grain would take about two hours, is that correct? A. Well, I would imagine it would take forty or fifty minutes to make the trip each way, opening and shutting gates.
"Q. How long would it take to unload the grain? A. I imagine — I couldn't say, one man and a truck, a truck-load of oats.
"Q. Well, approximately how long — I am not trying to confine you to any specific minutes, but so we will have some idea in the record how long it would take? A. Well, approximately — probably as long as it would take to make the trip."
Following the above, inquiry was made by the court as follows:
"THE COURT: And you say at the time you asked him, he was standing —
"THE WITNESS: He had just got out of the truck.
"THE COURT: He had just got out of the truck?
"THE WITNESS: Yes, sir.
"THE COURT: In what position was he standing?
"THE WITNESS: Well, standing something like this.
"THE COURT: Leaning against the truck?
"THE WITNESS: Leaning against the truck, yes, sir.
"THE COURT: And you say his face —
"THE WITNESS: Was white.
"THE COURT: Was white.
"THE WITNESS: Yes, sir.
"THE COURT: He acted like he was in pain?
"THE WITNESS: Yes, sir.
"THE COURT: You then asked the question.
"THE WITNESS: Yes, sir.
"THE COURT: In response to your question he made the reply?
"THE WITNESS: Yes, sir.
"MR. ED. ROBISON: Did you notice anything there about his movements?
"THE WITNESS: He just kinda quivered.
"MR. ED. ROBISON: What about his ability to walk?
"THE WITNESS: Well, he was just poky when he walked.
"THE COURT: Well, I think it is admissible, gentlemen, I am going to admit it."
The Court after inquiry, in absence of the jury, overruled the defendant's objection to the said character of testimony, to which action of the court due objection was made and exception taken.
Thereafter, and in the presence of the jury, the following testimony was given:
"Q. Now, Mr. Rhoads, before I repeat the question which I asked a minute ago
I will ask you one thing further: Did you notice anything about Mr. Goucher's walking, or movements or anything of that kind, when you saw him there? A. When?
"Q. When you saw him get out of the truck and just before you had a conversation with him that I...
