Nerrow v. Pacific Mut. Life Ins. Co.

• Decision Date: 04 April 1927
• Docket Number: No. 15888.,15888.
• Parties: NERROW v. PACIFIC MUT. LIFE INS. CO. OF CALIFORNIA.
• Court: Missouri Court of Appeals

294 S.W. 97

NERROW v. PACIFIC MUT. LIFE INS. CO. OF CALIFORNIA.

No. 15888.

Kansas City Court of Appeals. Missouri.

April 4, 1927.

Rehearing Denied May 9, 1927.

Appeal from Circuit Court, Jackson County; Samuel A. Dew, Judge.

Action on policy of accident insurance brought by Ruby Nerrow against the Pacific Mutual Life Insurance Company of California. From a judgment for plaintiff, defendant appeals. Affirmed.

Charles M. Miller, Henry M. Shughart, and Lowell It. Johnson, all of Kansas City, for appellant.

Mont T. Prewitt, of Kansas City, for respondent.

ARNOLD, J.

This is an action to recover upon a policy of accident insurance, together with the statutory penalty for vexatious refusal to pay, and a reasonable attorney's fee.

Defendant is a corporation organized and existing under the laws of the state of California, and was authorized to do business in the state of Missouri. Its offices were at 522 Finance building, in Kansas City, Mo.

On June 21, 1924, defendant issued its accident policy on the life of one Holly Robinson, in the principal sum of $400, in case of death of insured by accident within 90 days thereof. The policy also provided for specified payments for loss of life, limb, limbs, sight, or time by accidental means, and for loss of time by sickness. The beneficiary, in case of death of the insured, as named in the policy was Ruby Nerrow, sister of insured, with whom he lived and made his home in Kansas City, Mo. While the said policy was in full force and effect and on July 12, 1924, the insured was cut across the neck, resulting in the severing of the jugular vein, and he died almost immediately. Proofs of death were timely furnished and demand made for payment, which was refused, and this suit followed.

The petition sets out the necessary formai matters and charges that on the night of July 12, 1924, the insured was injured "by being accidentally cut across the neck, directly resulting in the death of said Rolly Robinson on the 12th day of July, 1924;" that the provisions of said policy were fully complied with by the insured; that plaintiff, as the beneficiary thereunder, complied with all the provisions of said policy required of her; but that defendant, without just reason or excuse, has vexatiously failed, neglected, and refused to pay the amount due under the terms of the policy by conspiring with one Gec. W. Lucas as to the manner in which the insured met his death, for the purpose of defeating plaintiff's rights; and on account of said vexatious refusal and neglect to my, under section 6337, R. S. Mo. 1919, defendant is liable and should be assessed 10 per cent. of the face of the policy and a reason Able attorney's fee of $1,000. Judgment is asked in the total sum of $1,440.

The amended answer is a general denial, and, as further answer, defendant avers that if plaintiff is the beneficiary of a policy of insurance issued to one Roily Robinson, as described in her petition, that said policy contained a provision, by the terms of which it was agreed that defendant should not pay indemnity for any injury sustained by insured by reason of the intentional act of any pennon; that if said Rolly Robinson did receive injuries which resulted in his death, said injuries were sustained by reason of the intentional act of another person.

The reply was a general denial. Upon the pleudings thus made the cause went to trial to E. jury, resulting in a verdict for plaintiff in the amount of $435.65 claim for loss and damage, $350 for attorney's fees, and $40 penalty for vexatious refusal to pay. Judgment was entered accordingly in the total sum of $825.65. Timely motions for a new trial and in arrest of judgment were overruled, and defendant has appealed.

The facts disclosed by the record are that insured was a negro employed in one of the pac'uing houses of Kansas City, Mo., and that he lnade his home with his sister, Ruby Nerrow, the beneficiary named in the policy, and her husband. On July 12, 1924, the insured was killed by having his throat cut at the hands of one George W. Lucas, also a negro.

It appears that insured left his home at 1823 Vine street, in Kansas City, Mo., about 4 o'clock in the afternoon of the day of his death, and that he was killed at about 7:30 p. on the same day in front of No. 552 Lydia avenue in said city; that George W. Lucas lived at 553 Lydia avenue, in the rear; that Lucas left his home at about 2 p. m. on said day and went to a barbecue stand run by one Jack Johnson in the rear of 552 Lydia avenue, remaining there some time, and then went on north to a grocery store where he made some purchases, remaining some time. At about 6:30 p. In. he started back home on the west side of Lydia avenue, carrying his packages. When he was in front of the areaway leading from Johnson's barbecue stand to the street, between Nos. 552 and 554 Lydia avenue, one Belle Johnson, negro and common-law wife of said Jack Johnson, came running out of the areaway and besought the protection of Lucas from a threatened assault from Johnson. Lucas testified that Belle Johnson said that Roily Robinson and Jack Johnson were scuffling in the house; that they quit scuffling, and Robinson came out of the house and said to the witness, "What have you got to do With it?" and witness related, "I said nothing." Witness then went home where he left his packages, remained a few minutes, and then went across the street to the home of his mother-in-law; that he left there after a few minutes and started north, intending to go to a pool hall; that he met Robinson standing near a telephone or telegraph pole at 552 Lydia avenue; that Robinson said, "I guess you went home and got a pistol or a knife, and you want more." And witness said, "More? I ain't wantin' no trouble at all." That Robinson then rushed at him with a knife; that Lucas thereupon drew a knife; that Robinson struck witness on one hand cutting it; that witness then struck at Robinson with a knife, cutting him somewhere in the face; that he was trying to hit Robinson because, as Robinson already had his knife drawn, he could not scare him.

The testimony shows that after Lucas struck Robinson with his knife, the latter ran across Lydia avenue and there fell in a yard, where he died.

The occurrence just described took place on Saturday night, July 12, 1924, and at about 2 o'clock the following Sunday morning Lucas surrendered to the police. He was placed in the county jail and when arraigned pleaded guilty to the charge of killing Robinson and was sentenced to two years in the penitentiary. He served such part of the sentence as was required and was present at the trial of the case at bar and testified as above indicated.

While Lucas was confined in the county jail and prior to his plea of guilty, counsel had been employed by plaintiff to collect the insurance under the policy herein, and, in the investigation of the circumstances attending the killing, counsel went to the county jail, questioned Lucas, and secured a statement from him, which counsel reduced to writing. There is some conflict in the testimony as to whether Lucas read the said statement, or whether it was read to him, but at any rate he signed it. The statement was received in evidence and is as follows:

"October 3, 1924.

"My name is George W. Lucas. I am married and have three children. My residence is at 525 Claremont, Kansas City, Mo. I am 36 years old. I have been charged with the killing of Holly Robinson on the night of the 13th day of July, 1924, at or near 546 Lydia avenue, Kansas City, Mo. I had known Rolly Robinson for some time, and we had been friends and had never had any trouble. I had no intention of killing Roily Robinson, or injuring him in any way on the night in question. The trouble was between two other friends of mine, Jack Johnson and Belle...