Hopkins v. Metropolitan Life Ins. Co.

• Decision Date: 03 June 1941
• Docket Number: No. 25743.,25743.
• Parties: HOPKINS v. METROPOLITAN LIFE INS. CO.
• Court: Missouri Court of Appeals

151 S.W.2d 527

HOPKINS v. METROPOLITAN LIFE INS. CO.

No. 25743.

St. Louis Court of Appeals. Missouri.

June 3, 1941.

Appeal from St. Louis Circuit Court; Charles B. Williams, Judge.

"Not to be reported in State Reports."

Action on an industrial life policy by Jessie Love Hopkins, administratrix of the estate of Floyd Taylor, against the Metropolitan Life Insurance Company. From a judgment for plaintiff, defendant appeals.

Affirmed.

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 V. Tucker, of St. Louis, for respondent.

HUGHES, Presiding Judge.

This appeal is from a judgment of the Circuit Court of the City of St. Louis in a suit to recover for the regular death benefits and also for accidental death benefits provided in a policy of life insurance issued by defendant to one Floyd Taylor, a son-in-law of the plaintiff, who was killed on September 19, 1935, by his wife, Ruth Taylor. The insured is survived by his wife and an infant child.

The petition, as amended, was in two counts. In the first count, after stating defendant's corporate entity and license to do business in Missouri, plaintiff alleged that on September 19, 1935, insured died intestate and Jessie Love Hopkins was on May 26, 1937, appointed administratrix by the Probate Court of the City of St. Louis, Missouri; that defendant by policy numbered 78976691 insured the life of Floyd Taylor for $520; she further alleged compliance with all the conditions of the policy, including due proof, demand, and refusal to pay, and then asked judgment for $520 with interest and damages for vexatious refusal to pay.

The second count of the petition, after repeating the statement with reference to corporate existence and license to do business in Missouri, and the appointment of the administratrix, alleged that by said policy number 78976691 defendant insured Floyd Taylor against accidental death; that on September 19, 1935, while so insured, Floyd Taylor sustained accidental injuries consisting of stab wound of chest, aorta, and left lung, inflicted by Ruth Taylor, his wife, which resulted in death; that insured and the plaintiff complied with the policy terms, made demand, but defendant refused to pay; plaintiff then alleged that Ruth Taylor, who stabbed and caused the death of Floyd Taylor, has been duly convicted and sentenced by the Circuit Court of the City of St. Louis, State of Missouri, and was confined to prison to serve her sentence; prayer for judgment for $520 with interest and penalties for vexatious delay, was then made.

For answer to each count defendant admitted its corporate existence and license in Missouri, denied generally each and every other allegation, and then alleged that plaintiff is not entitled to recover because such action would enable Ruth Taylor, the widow, to profit by her own wrong, which resulted in the death of the insured.

No one was present at the affray which resulted in the stabbing of insured except the insured himself and his wife, Ruth Taylor. The evidence developed that insured went to his home shortly after one o'clock in the afternoon of September 19, 1935, and in about two minutes afterwards he was found in front of the house lying on the ground and said, "My wife cut me." He died while being taken to the hospital. An autopsy showed the cause of death to be a stab wound cut into the left lung and the large artery in the immediate vicinity of the heart.

The police were called and arrived at insured's home shortly after he was stabbed, and they found insured lying on the ground unconscious. One police officer went up to the front steps, opened the door and Ruth Taylor was just inside of the front door with a baby in her arms; upon being asked who did it she said that she did, that they had been quarreling and he struck her in a fight over a woman; that he had come home at 1:30, they quarreled about this woman and he struck her. Another police officer testified that Ruth Taylor, in response to being asked who did it, said, "I expect I did"; that she said he had come home, said he was out with his other woman; they had an argument; he struck her, she got a knife and stabbed him and he twisted the knife out of her hand, ran down stairs and shouted that he was cut. The officer further said that in the bedroom a couple of chairs were overturned and the bed was mussed up.

Ruth Taylor was tried in the Criminal Division of the Circuit Court on January 7, 1936, on some charge growing out of the killing of her husband, the nature of the charge not appearing in the record before us in this case. On that occasion she testified, in substance, as follows:

"That witness and Floyd Taylor lived in three rooms, the front room, the middle room and the kitchen; that she had given the baby a bath and was sitting in the front room, dressing her, when her husband came in; that he struck her and knocked her down and, in falling she pushed against her daughter, who also fell down; that she got up and he hit her the second time and when she got up he came towards her with a chair, saying he was going to kill her, and then she grabbed the knife off the mantel piece, dodged the chair and struck him with a knife."

A deposition of Ruth Taylor in this case taken on June 17, 1938, was read, in which she testified, in substance, as follows:

"That her husband came in about 1:30 in the afternoon, while she was dressing the baby; she asked him where he had been and he said `Out with his woman'; she started an argument; he asked her to hush and she continued the argument and got a knife and accidentally cut him with the knife; he struck her after she cut him, but not before; the knife was lying on the mantel in the room where she was; it was a small pocket knife with a blade about two inches long and was lying open on the mantel; that she struck him with the knife before he smacked her; she wasn't intending to hurt him, but simply to frighten him a little bit; that she struck him on the left chest and then he struck her and then went downstairs and somebody called the police and she went downstairs and he wasn't dead then, but he died shortly after that; that she went to the hospital, but her eye wasn't so black, but one of his fingers hit her in the eye; she considered any kind of man smacking a lady is a hard blow."

After demurrers to the evidence, asked by the defendant on both counts, were overruled, and instructions, which will be later referred to, were given or refused, the cause was argued and submitted, and a verdict was returned in favor of the plaintiff on both counts of the petition in the total sum of $1,222, for which judgment was rendered, and from which judgment defendant appeals.

The first complaint of the appellant is that, considering instruction No. 6 and instruction No. 7, both given at defendant's request, the verdict on both counts in plaintiff's favor is inconsistent. The first count of the petition is for recovery of the regular death benefits under an industrial life insurance policy, and by defendant's...