Klinginsmith v. Mutual Ben. Health & Acc. Ass'n

• Decision Date: 06 November 1933
• Citation: 64 S.W.2d 705,228 Mo.App. 229
• Parties: RUBY KLINGINSMITH, RESPONDENT, v. MUTUAL BENEFIT HEALTH & ACCIDENT ASSOCIATION, APPELLANT
• Court: Kansas Court of Appeals

64 S.W.2d 705

228 Mo.App. 229

RUBY KLINGINSMITH, RESPONDENT, v. MUTUAL BENEFIT HEALTH & ACCIDENT ASSOCIATION, APPELLANT

Court of Appeals of Missouri, Kansas City

November 6, 1933

Appeal from Circuit Court of Mercer County.--Hon. A. G. Knight Judge.

Reversed and remanded.

Clare Magee and V. C. Rose, Jr., for respondent.

Cleary Horn & Skutt, J. Hubert Fuller and George E. Woodruff for appellant.

OPINION

SHAIN, P. J.

This is an action brought by Ruby Klinginsmith, plaintiff, the widow of Iloe Klinginsmith, deceased, against Mutual Benefit Health and Accident Association, defendant, wherein the plaintiff seeks to recover for the death of her husband alleged as having met his death through purely external violent and accidental means. It stands admitted that for value the defendant had issued a policy to Iloe Klinginsmith, deceased, and that plaintiff was the beneficiary therein and that the defendant contracted therein to pay the sum of two thousand dollars ($ 2,000) in event of death of said deceased, provided that death result through purely external, violent and accidental means except in the event of suicide while sane or insane. It stands admitted that the policy was in full force and effect at the time the plaintiff's husband met his death.

The defendant's answer to the plaintiff's petition is a general denial.

The record discloses that defendant based its defense on claim of the failure of plaintiff to prove that the plaintiff's husband met his death as a result of purely accidental means, and contention is presented by defendant that death was a result of suicide. It appears conceded that the deceased was sane at the time of his death.

All of the evidence discloses that deceased drove into his home in his automobile late at night, that he put his car in the garage, went into the house where he stayed but a short time, that he left his house, went through the gate into the back yard, that a shot of a gun was heard and that his wife and members of the family hearing the report of the gun left the house and found plaintiff's husband lying in the back yard dead with a gunshot wound just below and a little in back of the right ear, and that a discharged small bore shot gun was lying in proximity to his feet. It stands admitted that the gunshot wound caused his death.

The evidence of the case is very conflicting as to the exact position the body was in when found and as to the exact position of the discharged shot gun, other than that the gun was down near the feet of the deceased. There was no eye-witness to the tragedy.

Trial was had by jury and the jury found the issues for the plaintiff in the sum of two thousand dollars ($ 2,000) and for $ 99.33 interest, totaling $ 2,099.33.

Penalty and punitive damages were asked but were denied by the verdict of the jury.

In accordance with the jury verdict, judgment was rendered for plaintiff and against defendant in the sum of $ 2,099.33. From this judgment defendant has duly prosecuted its appeal to this court.

The defendant's assignment of errors in its brief are as follows:

"ASSIGNMENT OF ERRORS.

"1. The court erred in overruling defendant's demurrer to the evidence offered at the close of plaintiff's case and at the close of all the evidence in the case by refusing to give defendant's Instructions D-A and D-B, respectively.

"2. The court erred in admitting incompetent evidence, hearsay, and evidence calculated to prejudice the jury and having no bearing on the issues in the case.

"3. The court erred in permitting improper argument to the jury by counsel for defendant, in failing to sufficiently reprimand counsel therefor, and in failing to discharge the jury, on account of such argument."

As to the defendant's specification one (1), evidently instructions D-2 and D-3 are intended. In defendant's specification three (3), evidently "defendant" is used where plaintiff is intended.

As to the defendant's assignment of error as to the court's refusal to give peremptory instruction, we conclude that, as it is clearly shown that the death was violent, it is for the jury to determine from all the facts and circumstances in evidence as to whether or not the death was...