McDowell v. Fid. Nat. Ins. Co., 20902.

• Citation: 23 S.W.2d 1071
• Decision Date: 04 February 1930
• Docket Number: No. 20902.,20902.
• Parties: MARTHA McDOWELL, APPELLANT, v. WASHINGTON FIDELITY NATIONAL INSURANCE COMPANY, A CORPORATION, RESPONDENT.<SMALL><SUP>*</SUP></SMALL>
• Court: Court of Appeal of Missouri (US)

23 S.W.2d 1071

MARTHA McDOWELL, APPELLANT, v. WASHINGTON FIDELITY NATIONAL INSURANCE COMPANY, A CORPORATION, RESPONDENT.^*

No. 20902.

St. Louis Court of Appeals. Missouri.

Opinion filed February 4, 1930.

Appeal from the Circuit Court of the City of St. Louis. — Hon. Frank Landwehr, Judge.

AFFIRMED.

Charles A. Lich for appellant.

(1) The court having withdrawn defendant's sole defense from the jury, the jury should have been permitted under the first count to award to the plaintiff damages on account of defendant's vexatious refusal to pay and attorney's fees. Patterson v. Ins. Co., 174 Mo. App. l.c. 44; Schwartz v. Ins. Co., 267 S.W. 87; State ex rel. v. Allen, 243 S.W. 839; Non-Royalty Shoe Co. v. Ins. Co., 210 S.W. 37. (2) Plaintiff having been shot and killed following an argument started by Blanche Wallace, died as a result of an accident with the meaning of the accident insurance policy. Eicks v. Ins. Co., 253 S.W. 1029; Pehlan v. Ins. Co., 38 Mo. App. 640; Lovelace v. Ins. Co., 126 Mo. 104; Collins v. Ins. Co., 63 Mo. App. 253; Berryman v. Ins. Co., 227 S.W. 96. (3) The defendant having failed to disclaim under the accident policy immediately upon being informed that the death of the insured resulted from gunshot wounds and for injuries which were intentionally inflicted, and having put the plaintiff to the trouble and expense of submitting proofs after knowledge of the manner of the insured's death, defendant was estopped from urging said defenses at the trial, having waived same. Shusterman v. Fidelity-Phoenix Ins. Co., 253 S.W. l.c. 95; Bowen v. Ins. Co., 69 Mo. App. 272; Dolan v. Ins. Co., 88 Mo. App. 666; Oehler v. Ins. Co., 159 Mo. App. 707, 139 S.W. 1173; Pace v. Ins. Co., 173 Mo. App. 485, 158 S.W. 892; Keys v. Knights & Ladies of Security, 174 Mo. App. 671; Shearlock v. Ins. Co., 193 Mo. App. 430; McCollum v. Niagara Fire Ins. Co., 61 Mo. App. 354; Parsons v. Fire Ins. Co., 132 Mo. 599; Fink v. Ins. Co., 66 Mo. App. 513; Hay v. Banker's Life Ins. Co., 231 S.W. 1035; Ceresia v. Aid Association, 211 S.W. 81; 29 Cyc., 198, paragraph F. (4) The question of waiver should have been submitted to the jury. Key v. Ins. Co., 174 Mo. App. 671; McCullon v. Ins. Co., 61 Mo. App. 352. (5) The question of damages for vexatious refusal to pay and attorney's fees under the second count should have been submitted to the jury. Schwartz v. Ins. Co., 267 S.W. 87; State ex rel. v. Allen, 243 S.W. 839; Non Royalty Shoe Company v. Ins. Co., 210 S.W. 37; Patterson v. Ins. Co., 174 Mo. App. l.c. 44.

Martin Farrow for respondent.

(1) Waiver is invoked only to prevent forfeiture and may not be used to nullify an express limitation of liability or to create a liability contrary to express contract. Scales v. Nat. L. & Acc. Ins. Co. (Mo. App.), 186 S.W. 948, 950; Newell v. Aetna L. Ins. Co., 214 Mo. App. 67, 258 S.W. 26, 28; Chandler v. John Hancock Mut. L. Ins. Co., 180 Mo. App. 394, 167 S.W. 1162; Schwab v. Bro. of Am Yeomen 305 Mo. 148, 264 S.W. 690, 692; Thomas v. M.W.A. (Mo. App.), 260 S.W. 552, 554, and 8 cases cited therein; 37 C.J. 547, and cases cited; Rosenberg v. Gen., etc., Assur. Co. (Mo. App.), 246 S.W. 1009, 1012; McCoy v. N.W. Mut. Rel. Ass'n, 92 Wis. 577, 66 N.W. 697, 47 L.R.A. 681; Reid v. Amer. Nat. Assur. Co., 204 Mo. App. 643, 218 S.W. 957; Loesch v. Union Cas. & Sur. Co., 178 Mo. 654, 75 S.W. 621. (2) There was no waiver of the limited liability under the accident policy for death from gunshot wounds or intentional act. Cases cited under 1, supra; Loesch v. Union Cas. & Surety Co., 176 Mo. 654, 75 S.W. 621; Allman v. O.U.C.T. of A., 277 Mo. 678, 213 S.W. 429, 432; 5 Cooley's Briefs on Ins. (2 Ed.), 4462, citing cases; Id. 4477, citing cases. (3) Plaintiff is estopped to claim waiver. Schwab v. Bro. of Am. Yeomen (Mo. App.), 243 S.W. 443; 5 Cooley's Briefs on Ins., 3965, citing Security Ins. Co. v. Laird, 182 Ala. 121, 62 So. 182. (4) There was insufficient evidence as to accident for submission to the jury. Laessig v. T.P.A., 169 Mo. 272, 69 S.W. 469, 471; Warner v. St. L., etc., R. Co., 178 Mo. 125, 134, 77 S.W. 67; Lamport v. Aetna L. Ins. Co. (Mo.), 199 S.W. 1020, 1024; Caldwell v. Trav. Ins. Co., 305 Mo. 619, 267 S.W. 907; Atherton v. Ry. Mail Assn. (Mo. App.), 221 S.W. 752; Phillips v. Trav. Ins. Co., 288 Mo. 175, 231 S.W. 947; Tillotson v. Trav. Ins. Co., 304 Mo. 487, 263 S.W. 819, 824; Cardinale v. Kemp, 274 S.W. 437, 448, and cases there cited; Landau v. Pac. Mut. L.I. Co., 305 Mo. 542, 267 S.W. 370, 375; Mockowick v. R. Co., 196 Mo. 550, 571, 94 S.W. 256, 262, and cases there cited; State ex rel. Ins. Co. v. Ellison, 268 Mo. 239, 187 S.W. 23; Griffith v. Continental Cas. Co., 299 Mo. 426, 253 S.W. 1043, 1048. (5) Plaintiff is estopped to claim insured did not provoke the shooting. Crum v. Crum, 231 Mo. 626, 639, 132 S.W. 1070, 1073; Torrence v. Pryor (Mo.), 210 S.W. 430; Varley v. Columbia Taxicab Co. (Mo.), 240 S.W. 218, 221; Aronvitz v. Arky (Mo.), 219 S.W. 620, 622; Brice v. Payne (Mo. App.), 263 S.W. 1005, 1007. (6) The court correctly ruled as to vexatious refusal. Kahn v. Assur. Corp., 187 Mo. App. 216, 173 S.W. 695, 696; Non Royalty Shoe Co. v. Ins. Co., 277 Mo. 399, 422, 210 S.W. 37; Goldbaum v. Great Eastern Cas. Co. (Mo. App.), 222 S.W. 868; Berryman v. So. Sur. Co., 285 Mo. 379, 227 S.W. 96; Zimmerman v. So. Sur. Co. (Mo. App.), 241 S.W. 95, 97; Meisenbach v. Nat. L. & A. Ins. Co. (Mo. App.), 241 S.W. 450, 452; Bennett v. Standard Acc. Ins. Co., 209 Mo. App. 81, 237 S.W. 144. (7) As the court's error in directing a verdict favored plaintiff, she may not complain thereof.

NIPPER, J.

This is an action brought by plaintiff, who is appellant here, against the defendant insurance company, on two policies of insurance on the life of Horace McDowell. One is a straight life policy and the other an accident policy.

The petition is in two counts. Count No. 1 is to recover under the life policy, and count No. 2 is to recover under the accident policy. The life policy provided that benefits would not be paid for injuries, fatal or otherwise, sustained while or in consequence of violating the law. This policy was for $155. The accident policy provided for the payment of $100 in the event of natural death, and $1,000 in case of accidental death. The accident policy provided that there should be no payment for accidental death resulting from gun shot wounds, or for injuries intentionally inflicted by any other sane or insane person, or while fighting or violating any law, or homicide or attempt thereat.

The evidence shows that the insured was shot and killed by one Blanche Wallace, in the city of Chicago, Illinois, in the month of February, 1927. The evidence as offered on the part of plaintiff discloses that a Mrs. Baker was conducting a rooming house in the city of Chicago, and that the insured went to her rooming house about 7:30 o'clock one evening. After he was there about ten minutes he was followed by Blanche Wallace. Miss Wallace rang the doorbell and some occupant of the rooming house went down the steps to open the door. When she opened the door she was met by Blanche Wallace, who appeared to be intoxicated. This witness then went upstairs and the insured came to the head of the stairs, being told to go down and see who it was that wanted to see him. Miss Wallace either followed insured or met him on the stairway, and some difficulty arose and they began fighting on the steps. They then went outside the house and a few minutes later it was reported that insured was shot, and that Blanche Wallace was held for the shooting. When Miss Wallace saw McDowell she cursed him and told him to come on down, and then there is some evidence that she grabbed him. The evidence would indicate that she shot and killed him in a fit of jealousy. This took place in February, 1927.

In June of the same year, the plaintiff employed Mr. Lich, an attorney in the city of St. Louis, in her effort to recover the amount of these policies. It appears that Mr. Lich was in possession of the life policy, the accident policy being in the possession of the defendant. He immediately advised defendant of this fact and the defendant then advised Mr. Lich that no proofs of death had been furnished, except a brief statement from the coroner to the effect that the deceased was murdered, and that the matter was being held in abeyance pending the outcome of the murder trial, in order to determine what the circumstances were, and the amount that would be due. Mr. Lich was advised in this letter that if the trial had been held and the facts determined the case could be disposed of at an early date. Mr. Lich answered this letter by telling the defendant that upon examining the life policy, the only one he had in his possession, he failed to see where it would make any material difference whether the insured was murdered or whether he died from natural causes. He informed the defendant that he did not have the accident policy before him but asked for a copy of the same. To this letter the defendant replied on July 5th, asking Mr. Lich to refer to paragraph three of the policy, and see if it set forth the conditions under which indemnity is not payable, as this information would materially assist the defendant in straightening the matter out. Mr. Lich was also advised that they did not have the accident policy, but that it might be in the local office if the beneficiary did not have it. Mr. Lich was also advised in a letter dated July 15th, that no proofs were ever furnished other than a brief statement from the coroner, and as to whether the deceased was violating any law would depend upon the circumstances leading up to the killing; that these facts would undoubtedly be brought out in the trial of the party who did the killing, and that if Mr. Lich had any of the particulars to advise it, as it would like to get the matter disposed of. Mr. Lich then wrote them asking for blank forms upon which to submit proofs of...