McKeon v. National Casualty Co.

Decision Date03 January 1925
Docket NumberNo. 18668.,18668.
Citation270 S.W. 707
PartiesMcKEON v. NATIONAL CASUALTY CO.
CourtMissouri Court of Appeals

Appeal from St. Louis Circuit Court; William H. Killoren, Judge.

Action by Winifred McKeon against the National Casualty Company. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

Bass & Bass, John Grossman, and James J. O'Donohoe, all of St. Louis, for appellant. Leahy, Saunders & Walther, of St. Louis, for respondent.

DAVIS, C.

This is an action on an accident insurance policy issued by defendant on the life of Thomas F. McKeon, with his wife, the plaintiff, named beneficiary therein. The jury returned a verdict for defendant, and plaintiff, after the court below overruled her motions for a new trial and for judgment non obstante veredicto, appealed from the judgment entered thereon.

Plaintiff's evidence tends to show that defendant on or about March 1, 1919, issued to plaintiff's husband its policy C303988, in which she was named beneficiary, the pertinent parts of which are as follows:

"In consideration of the payment of a policy fee of $3.00, and of the premium, $6.15, and of the statements and agreements in the application therefor, a copy of which is indorsed hereon or attached hereto, does hereby insure Thomas F. McKeon, of St. Louis, Mo., the person described in said application, who states his occupation to be that of `not working, I have income, duties, collecting income,' subject to the provisions and conditions herein contained and indorsed hereon, from 12 o'clock noon, standard time, of the day this contract is dated, until 12 o'clock noon, standard time, of the 1st day of March, 1920, and for such further time as may be stated in the renewal receipts.

"Paragraph A. Accident Indemnity for Total Disability. At the rate of sixty dollars per month, against total loss of time, not exceeding thirty-six consecutive months, resulting solely from bodily injuries effected directly and independently of all other causes, by the happening of an external violent and accidental event, and which immediately, continuously and wholly, from date of accident, disable and prevent the insured from performing any and every duty pertaining to his business or occupation.

"Paragraph B. Partial Disability. Or, if injuries caused and occurring as stated in paragraph A, shall immediately, wholly and continuously, from date of accident, disable and prevent the insured from performing one or more important daily duties pertaining to his occupation, or in event of like disability immediately following total disability, or in event of total disability not immediately following injury, but occurring within thirty days from date of injury, the company will pay the insured for the period of such disability, not exceeding six (6) consecutive months, one-half of the rate above specified for total loss of time: Provided, the combined period for which indemnity shall be payable for total and partial disability under paragraphs A and B hereof shall not exceed thirty-six consecutive months.

"Paragraph C. Specific Total Losses. In event of any one of the following specific total losses, within four months from date of accident, which shall result from bodily injuries caused and occurring as stated in paragraph A, the company will pay the amount herein specified for such loss, in lieu of any other indemnity.

"For loss of life (payable to beneficiary), one thousand dollars, the principal sum.

"Paragraph F. Fifty Per Cent. Accumulation. For each period of three consecutive months immediately preceding the date of the accident, that this policy shall have been maintained in continuous force by the payment of the premiums on or before the dates due, five per cent. shall be added to the original specific amount payable for any loss under paragraph C sustained by the insured, but such addition shall never exceed fifty per cent. of such original amount.

"Standard Provisions.

"Paragraph S. 1. This policy includes the indorsements and attached papers, if any, and contains the entire contract of insurance except as it may be modified by the company's classification of risks and premium rates in the event that the insured is injured or contracts sickness after having changed his occupation to one classified by the company as more hazardous than that stated in the policy, or while he is doing any act or thing pertaining to any occupation so classified, except ordinary duties about his residence or while engaged in recreation, in which event the company will pay only such portion of the indemnities provided in the policy as the premium paid would have purchased at the rate but within the limits for by the company for such more hazardous occupation.

"14. No action at law or in equity shall be brought to recover on this policy prior to the expiration of sixty days after proof of loss has been filed in accordance with the requirements of this policy, nor shall such action be brought at all unless brought within two years from the expiration of the time within which proof of loss is required by the policy."

That the policy was renewed by the payment of premiums, and was in force and effect until March 20, 1922; that for loss of life, payable to the beneficiary, the principal sum stated therein was $1,000, and defendant admitted that, in addition to the $1,000 principal sum, the policy had an accumulation of $350 under paragraph F; that Thomas F. McKeon, the insured, died on January 6, 1922, from a gunshot wound entering at the base of the skull; that plaintiff offered and read in evidence a letter from the claims adjuster "of defendant, which letter stated, in substance, that said McKeon met his death by a gunshot wound inflicted by a policeman while endeavoring to apprehend him as an alleged member of a gun gang; that the act is the result produced exactly with the intentions of the actor, the result is not an accident, and could by no means be construed as accidental; that the lack of liability is evident, and that there was no necessity of submitting further proofs for execution to permit of proving the claim, and that they regretted that they cannot give this case further consideration.

Defendant's evidence tended to show that on January 6, 1922, four officers in a police automobile, while going west, met McKeon in an Essex car going east on Locust street. A narrative by one of the officers epitomizes the facts on which defendant relies. It is as follows:

"We were going up Locust street and Detective Fierce was driving us, four of us, in the car, and just about at the intersection of Twenty-first and Locust Fierce remarked, `There is Doyle.' The traffic was rather heavy at that time and Fierce kind of swerved the car, and Doyle thought—evidently thought we were going to turn and he went east to Twentieth and over Twentieth. Fierce drove over Twenty-first to St. Charles and at that point we nearly collided with Doyle's car and ordered him to stop. Instead of stopping he increased his speed. He was going very fast; he had a fast car. We swerved to the west to Twenty-second street and he went north on Twenty-second street and we followed, and at Twenty-second and Washington a street car nearly cut us off. Well, we chased him as far as Franklin avenue and fired a shot in the air, might have fired two, I don't know. He increased his speed and we were'running very fast.

"And going over Twenty-second street, before arriving at Biddle, there was a couple reports from his car and we realized that he was shooting at us and we returned the fire. He turned west on Biddle street, and we lost sight of him from Twenty-second street until Jefferson avenue; when we turned into Biddle street he was just about turning Jefferson avenue north. When we got to Jefferson avenue he was quite a distance ahead of us going north, and he turned west on Cass. When we got into Cass avenue we exchanged shots, several of us firing at him, all of us. He was in the car track and we were in the car track. When his car got to Garrison avenue, or before it got—approaching Garrison avenue, about a block, I should say, east of Garrison avenue, his car commenced to slack up and we stopped shooting. When it got to Garrison avenue the car stopped dead and we were going so fast that we went by it about 75 feet, probably, and I jumped out of the car and I said, `Look out, boys, he may be foxing,' and we had our pistols in our hands and we covered the car, and when we got to the car he was drooped over the steering wheel, and there was blood coming from his mouth. Fierce walked over to the car and took a .45 caliber revolver out of his hand. We searched the car and we found several shotgun shells in the back, what they call the tonneau of the car, in front of the back seat on the side."

The four officers testified, each separately, that he did not deliberately shoot or kill McKeon, and two, at least, said they bore him no malice. Such other facts as are pertinent will later appear in a discussion of the questions involved.

I. Inasmuch as defendant disclaimed, in the letter to plaintiff's attorney, all liability under the policy sued on, the cause was not prematurely instituted by plaintiff, because she refused to defer to bring the action on the policy until the expiration of 60 days after proof of loss filed as it provided. Baker & Lasley v. Phoenix Ins. Co. (Mo. App.) 221 S. W. 761; Martin v. Insurance Co. (Mo. App.) 256 S. W. 120; Hosmer Bros. v. Insurance Co., 80 Mo. App. 419.

II. It will be noted that the policy insures against accident, resulting solely from bodily injuries effected directly and independently of all other causes, by the happening of an external violent and accidental event. It follows that by introducing in evidence the policy and testimony tending to show that insured met his death as the result of an external, violent, bodily, injury, within four months of the day of the...

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