Mayhew v. Travelers’ Protective Ass’n of America
| Citation | 52 S.W.2d 29 |
| Decision Date | 21 June 1932 |
| Docket Number | 22133 |
| Parties | MAYHEW v. TRAVELERS’ PROTECTIVE ASS’N OF AMERICA. |
| Court | Court of Appeal of Missouri (US) |
Appeal from Circuit Court, Cape Girardeau County; Frank Kelly Judge.
“ Not to be officially published.”
Action by Marie E. Mayhew against the Travelers’ Protective Association of America. From judgment for plaintiff defendant appeals.
Reversed and remanded.
Hardesty & Limbaugh, of Cape Girardeau, and Holland, Lashly & Donnell and M. P. Phillips, all of St. Louis, for appellant.
B. Hugh Smith, of Cape Girardeau, and Ward & Reeves, of Caruthersville, for respondent.
This is an action to recover on an accident insurance contract.
The defendant is a fraternal beneficiary association, organized under the laws of the state of Missouri, and having its principal office in the city of St. Louis. On April 2, 1928, William Ralph Mayhew of Cape Girardeau became a member of this association, and was issued a Class A certificate of membership, in which Marie E. Mayhew, his wife, was designated as beneficiary. The certificate provides that the constitution, by-laws, and articles of incorporation, and all amendments thereto, shall constitute the agreement between the association and the member, and shall govern the payment of benefits.
Section 4 of article 10 of the constitution provides that whenever a Class A member in good standing shall, through external, violent, and accidental means, receive bodily injuries which shall, independently of all other causes, result in death, $5,000 shall be paid to the beneficiary named in the certificate of such deceased Class A member.
Section 5 of article 10 provides that for any injury resulting either in death or disability received by a Class A member in an attempt to rob such member the association shall be liable for $250.
Section 1 of article 13 provides that the association shall not be liable for injuries, fatal or otherwise, inflicted on a member by himself when sane or insane, nor for death caused by murder, nor for intentional injuries or acts causing death or disability inflicted by the member or any other person upon him while sane or insane.
Section 5 of article 13 provides for the furnishing of proofs of injury or death, including the affidavit of the claimant or beneficiary, together with the affidavit or certificate of the attending physician, setting forth fully the cause of injury or death, and provides that such proofs must be furnished within sixty days after the death or recovery from the injury.
Section 6 of article 13 provides that any member meeting with an accident must notify the national secretary of the association, in writing, within thirty days after the event causing the injury, giving full particulars of the same, and that in case of death the beneficiary shall give such notice within thirty days after the event causing the death.
William Ralph Mayhew died on May 11, 1930, from a gunshot wound received on the night of May 5, 1930. It is not disputed that he was then in good standing as a Class A member of the association.
The petition alleges that the death of William Ralph Mayhew resulted solely from a gunshot wound accidentally inflicted upon him by another person.
The answer denies generally the allegations of the petition, and alleges by way of affirmative defenses: (1) That Mayhew’s death was directly caused by murder; (2) that his death was directly caused by a gunshot wound intentionally inflicted upon him by another person; and (3) that his death resulted from an injury received in an attempt to rob him.
The trial, with a jury, resulted in a verdict and judgment for plaintiff for $5,000, and defendant appeals.
The insured, William Ralph Mayhew, was found on the morning of May 6, 1930, seated in his automobile, alongside the concrete highway known as No. 61, which runs between Jackson and Cape Girardeau, at a point six miles east of Jackson and four miles west of Cape Girardeau. There was a bullet wound back of his left ear, which had been inflicted upon him during the night or early morning. The place at which the automobile was found was just west of the crest of a hill, near a broadcasting station, where the road for some distance, coming from west to east, is on the upgrade, and runs through a cut; the embankments alongside the road being ten or twelve feet high for a distance of three or four hundred feet west of the location of the insured’s car. The insured was found in his car, which was just off the concrete highway, headed about forty-five degrees to the southeast, with the left front wheel about four or five feet south of the south edge of the concrete, and the left rear wheel just off the edge of the concrete. A skid mark in the soft earth just west of the place where the car stopped indicated that the brakes had been applied before the car stopped. The car was in gear, the ignition key on, and the lights burning. An examination of the car revealed that a bullet had been fired through the rear vision glass and had lodged in the fore part of the car, over the right door. Another bullet had hit the rounded portion of the left and rear part of the upper body and had glanced off. Another bullet had been fired through the rear glass windows of the car. Another had been fired, striking insured just back of the left ear. The insured was apparently unconscious when found, and blood and brain matter were exuding from the bullet wound. He was still seated at the wheel of his car, stooped over, his hands down between his legs, his revolver lying between his feet with the barrel or muzzle pointing toward the left door. He had vomited on his clothing, and it appears that his clothing was disarranged, his belt unbuckled, and his pants unbuttoned. His traveling bag was on the front seat, to his right, across which, in disordered position, lay a pair of trousers. The end buttons on the traveling bag were up and the center button was snapped or caught. In the back of his car was an extra suit of clothes. There was also broken glass in this seat, which had fallen from the windows and rear vision glass as they were penetrated by bullets. The battery of the car had run down so that the car would not start by the mere use of the starter. The insured’s revolver, upon examination, was found to be fully loaded, except that there were two discharged cartridges, the shells of which had just passed the firing pin, and the revolver gave evidence of having been recently fired. The concrete highway, at the place where insured’s car was found, is about eighteen feet wide. About eighteen paces to the rear and west of where the car was found, and on the south edge of the concrete highway, there was broken glass found, similar to the glass that remained in the rear right window of the car. The first report of the insured’s condition reached the sheriff at about 6 o’clock in the morning, and in about an hour thereafter, the insured was removed to the Southeast Missouri Hospital at Cape Girardeau, where examination by Dr. G. B. Schultz showed that the bullet had penetrated back of the left ear. There were no powder marks or burns of any kind about the wound. There was present blood and brain matter oozing from the wound. X-ray pictures showed the course of the bullet to have been through the petrous portion of the temporal bone ranging upward and lodging somewhere about the left center of the brain. The insured was unconscious, and his tongue and the left side of his face were paralyzed. The doctor saw him for the next ensuing five days, from three to five times a day, and on each occasion found he was unconscious. The record discloses no evidence as to insured’s movements during the night of May 5, or the early morning of May 6, 1930. No eyewitnesses to the shooting were produced at the trial.
The foregoing facts are shown by the testimony of Nat Snider,...
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