Markland v. Clover Leaf Casualty Co.

• Decision Date: 06 January 1919
• Docket Number: No. 13033.,13033.
• Citation: 209 S.W. 602
• Parties: MARKLAND v. CLOVER LEAF CASUALTY CO.
• Court: Missouri Court of Appeals

209 S.W. 602

MARKLAND v. CLOVER LEAF CASUALTY CO.

No. 13033.

Kansas City Court of Appeals. Missouri.

January 6, 1919.

Appeal from Circuit Court, Chariton County; Fred Lamb, Judge.

"Not to be officially published."

Action by William F. Markland, by W. L. Markland, his guardian and curator, against the Clover Leaf Casualty Company. There was a judgment for defendant, plaintiff's motion for new trial was sustained, and defendant appeals. Affirmed.

A. C. Whitson, of Mexico, and Gilbert Lamb, of Salisbury, for appellant.

Willard F. Cave, of Moberly, for respondent.

BLAND, J.

This is an action upon an insurance policy wherein plaintiff was the beneficiary, insuring the deceased in the sum of $2,500 "from bodily injuries effected through external, violent, and accidental means."

Paragraph A of the policy is headed "Specific Losses," and provides that "if any of the following specific total losses, which shall result necessarily and solely from bodily injuries within sixty days from date of accident, the company will pay, in lieu of all other indemnities under this policy: For loss of life, principal sum"; for loss of both hands by severance at or above wrist, or both feet by severance at or above the ankle, or one hand at or above wrist, or one foot at or above ankle by severance, or entire sight of both eyes if irrevocably lost, the principal sum of the policy; for loss of the right hand at or above wrist, or either foot at or above ankle by severance, two-fifths of principal sum; and for the loss of the left hand by severance at or above wrist, or entire sight of one eye, if irrevocably lost, one-fifth of principal sum. The policy further provides that) "the payment of all amounts for specific disability in paragraph A shall be made to the insured or to his beneficiary, if surviving, or in the event of his prior death, to the estate of the insured in installments of twenty-five dollars on the first day of each month until the full disability is paid."

The policy also provides that in the event of "death or disability, due wholly or in part to or resulting directly or indirectly from injuries intentionally inflicted upon the insured by himself or by any other person (assaults by burglars or robbers excepted); * * * or death or disability happening to the insured while in any degree under the influence of intoxicating liquors or narcotics, or which shall happen in consequence of the excessive use thereof; * * * the company is not liable."

The insured died on May 10, 1916, at the hands of his wife as a result of a wound inflicted by a revolver. The petition alleges that Mrs. Markland was "temporarily insane" when she shot her husband.

Defendant set up in its answer the provisions of the policy mentioned, alleged that the insured died from fatal injuries intentionally inflicted on him by another person, and that at the time the insured received the fatal injuries he was, and for a long time had been, under the influence of intoxicating liquors. There was a verdict and judgment for the defendant, plaintiff thereupon filed a motion for a new trial, which was sustained, and defendant has appealed. The reason given by the court in sustaining the motion for a new trial was that it erred in giving certain instructions for the defendant.

As before stated, the facts show that the insured came to his death by shooting at the hands of his wife. Plaintiff endeavored to escape the consequences of that clause in the policy providing that defendant should not be liable for injuries resulting in death that were intentionally inflicted, by showing that deceased's wife was insane at the time she killed her husband.

It is the contention of the defendant that the verdict was for the right party regardless of the question whether the instructions were proper, and therefore the court erred in granting the motion for a new trial. The specific contention of the defendant in reference to this matter is that the plaintiff failed to show that the insured's wife was insane at the time she killed her husband.

On the question of the wife's insanity, the evidence shows that she was a woman 44 years of age, and was at the time of the shooting undergoing a change of life. She and her husband lived in the village of Armstrong, Howard county, Mo., the husband being engaged in a mercantile business in that village. Their home was about 100 yards from his store. It seems that the wife contended that some other woman had come between her husband and herself. Whether she had any foundation for such belief is not definitely shown in the record. Plaintiff's evidence on the part of the wife's insanity was as follows:

Witness J. P. Hughlett testified that he spoke to Sallie Markland (the wife of insured) the night J. W. Markland, the insured, was killed; that she came to his house between 10 and 11 p. m. on that day, and wanted him to get up at 4 o'clock the next morning and go down to his store (which was about two doors from the insured's store), and let her in so she could "stay there till Will (the insured) opened up his store, then she would go up and see him." The insured was not on friendly terms with Hughlett. Mr. Hughlett told Mrs. Markland that he could not go to his store, and she then wanted him to send his boy. He told her that he could not do that.

W. W. Weir testified that his wife was an aunt of the deceased; that he lived just south of the Markland home across the street. Mrs. Markland was often at his home; that she visited his house possibly two or three weeks before the tragedy; that she would talk to him about her troubles which to him seemed imaginary; that while she was talking she "would break out with spells of wringing her hands and just go almost to pieces, and after a while she would quiet down; this was about the condition I usually found her in." On the evening of the tragedy, after supper, Mr. Weir was going to Mr. Hughlett's butcher shop, when Mrs. Markland called to him across the street, and "she seemed very restless about the situation she was placed in." "She seemed troubled about it." "She seemed to be laboring under severe mental strain; she would break out in crying spells, and cry for a while and talk about this matter, and then she would stop, and seemed to get composed, get back to her natural self again." When she had these spells she used to ask Mr. Weir what she should do, saying that, "She didn't know what to do." Witness testified, "I usually advised her that the best way I knew was to keep the thing quiet." The witness saw the insured about 4 o'clock that day, and said that in his judgment insured was not drinking. The witness said that he saw Mrs. Markland the morning of the tragedy, at 4 o'clock in the afternoon, and again in the afternoon at 5 o'clock, and that each time she was in the same state of mind as already described.

Dr. Cecil testified that some time before the tragedy he had been called to treat Mrs. Markland "on account of her condition in change of life"; that he had not seen her for over three weeks prior to the day of the tragedy; that on two occasions she had cried and had wrung her hands; that she was a strong woman, and was in the usual good health for a woman of her age. The doctor testified further that he saw insured about 30 minutes before he was shot; that as far as he could determine he was sober at that time; that he was called to the house of the insured, and found that the latter's wife had shot insured, and had shot and killed herself. The wife was then dead, but insured lived three hours before he died. The doctor gave insured some whisky as soon as he arrived at the house. The doctor testified that on account of Mrs. Markland's passing through the change of life period she was nervous; otherwise her general health was good. He saw her about dark on the day of the tragedy, and at that time she was crying and wringing her hands and saying, "Oh, what shall I do?" When asked about her mental condition at that time, the doctor said, "She was wild, hysterical." Shortly after the tragedy the doctor wrote defendant that insured was killed by his wife; "his wife being jealous."

Mr. Walton, editor of the local paper, had an attack of indigestion, and was called by the doctor to a drug store about 10, p. m. Mr. Walton called the doctor out of the store, and insured came along the street soon after. The doctor then talked with insured a short time. The doctor testified that he had supposed that insured came from his store. They talked about 30 minutes, until about 11:30 p. in. At that time the doctor told insured not to go home, that his wife was wild and crazy, and that it was not safe for him to go home unless the doctor preceded him there. When the insured left he said that he was either going home and go to bed, or he was going back to the store and go to bed. Insured was shot as he entered the door of his home within 30 minutes after this conversation. Immediately after shooting her husband Mrs. Markland shot herself.

Leland Weir testified that he saw the insured about 7 o'clock p. m. on the day of the tragedy, and didn't think he was drinking; that he saw Mrs. Markland about noon on the day of the tragedy, and again between 9 and 10 o'clock on the evening of that day, and at the latter time she was standing between her husband's store and another store, where she stopped him and said, "Oh," evidently mistaking Weir for her husband. At that time she had her hands folded under the lapel of her coat. She asked the witness if he had seen her husband, and witness said, "Yes; I saw him as I came from supper." Mrs. Markland replied, "I believe Will (meaning her husband) is in that store (meaning the insured's store), and won't let me in." The witness said at that time Mrs. Markland was excited and nervous in her speech, and "seemed to be nervous all over." The witness said that he had heard that insured was running around at night, but that he did not know; that he...