Perringer v. Metropolitan Life Ins. Co.

Citation244 S.W.2d 607,241 Mo.App. 521
Decision Date20 December 1951
Docket NumberNo. 7026,7026
PartiesPERRINGER v. METROPOLITAN LIFE INS. CO.
CourtMissouri Court of Appeals

Oliver & Oliver, R. B. Oliver, Jr. and Gerald B. Rowan, Cape Girardeau, for appellant.

Melvin Englehart, Fredericktown, Dearing & Matthes, Hillsboro, for respondent.

VANDEVENTER, Presiding Judge.

Suit on an accident insurance policy for death. Verdict and judgment in the sum of $5,000, and defendant appeals.

The petition alleged the issuance of the policy to one Charles L. Buford (whose nickname was Tots) payment of premiums, the death of the insured by purely violent and accidental means, denied that death was caused by suicide, alleged that defendant had failed and refused to pay, with a prayer for judgment.

The answer admitted the issuance of the policy, the payment of premiums, the death of the insured and that the policy excluded liability if the insured committed suicide while either sane or insane and alleged that the insured did commit suicide and the death was not accidental. As a further defense the answer stated that the death of the insured occurred as a natural and probable result of his intentional, wrong and felonious acts in entering the dwelling place of one Margaret Burns during the night time, and in her absence for the purpose of lying in wait for her, armed with a pistol, with the intention of murdering her, or with the intention of frightening and threatening her by exhibiting and brandishing the pistol in her presence, or with the purpose and intention of killing himself. That in pursuance of one or the other of these objects, when Miss Burns entered her home, insured raised the pistol which he had brought with him and aimed it at her with the intention of killing her or frightening or threatening her and that Miss Burns in defending herself engaged in a scuffle with deceased, tried to gain possession of the revolver or deflect the aim thereof, and during the scuffle, it was discharged and insured was killed.

The first question is the sufficiency of the evidence and whether the trial court should have sustained defendant's motion for a directed verdict at the close of all the evidence. The answer to this question, therefore requires an examination of the testimony in detail.

The first witness for plaintiff was the Coroner, Sam Najim, Jr. He testified that he was called to the residence of Margaret Burns about 2 a. m., on October 13, 1949. That Sheriff Winfred McDaniels, Trooper Lloyd Murphy, Prosecuting Attorney Henri Sursa, and probably Reverend Guest, who lived two doors away, were present. That this residence faced west and was located on the east side of South Main Street in Fredericktown, Missouri; that it was 40 or 50 feet from the sidewalk; that there was no street light immediately in front of the house, but there was one 140 or 150 feet to the north; that on each side of the front entrance to the residence was a tall slender evergreen and nearby, some small low evergreens, but that none of them were in front of, or obstructed, the front door, which had a small opaque glass pane about three to five feet up from the bottom and approximately ten inches square. This door entered into a living room approximately ten by sixteen feet in size and directly, as you entered the door, to the left and north of the living room, connected by an open archway six and one-half feet wide, was the dining room, which was very small--about seven by eight feet. The front door had a bullet hole in it, about three feet from the floor, ranging down and it had, after passing through the door into the dining room, hit a chair or table and entered the wall of the room near the baseboard. Lying in the dining room on his back, in front of a buffet, about two feet from the east wall of the dining room, with his feet extending slightly through the arch between the rooms and into the living room, was the deceased, Charles L. Buford. About eight or ten inches from his right arm was a dark colored revolver. His hat was lying on the floor and he had a bullet wound in his head. The bullet had ranged upward, had apparently entered slightly above the right temple, gone through his head and come out on the left side and toward the back and upper portion of his skull, and had gone on into the ceiling. Where the bullet entered the ceiling were small spots of human blood or flesh, indicating that it had already gone through the head of the deceased. There was no evidence of other bullets. It was the opinion of witness that deceased could not have fired the revolver after the bullet pierced his head. The witness further testified that there were several windows in the house that were equipped with venetian blinds. His impression was that the blinds were closed but he was not positive.

He was not only coroner but also undertaker and prepared the body for burial. He testified that he thought, but was not positive, there were powder burns around the wound in the head but it was so covered with coagulated blood that it was difficult to be sure. He testified, however, that on the left hand of the deceased, in the palm near his thumb and forefinger were powder burns. That these burns on the left hand could have been caused by grasping the revolver around the cylinder while it was being fired. The deceased was right-handed. The revolver was a 38 Colt, serial number 307585. In his opinion, the wound immediately caused death, that the bullet hole in the door must have been put there before the bullet went through the head of deceased, because in his opinion, the latter produced instant death. He further testified that the night before the trial, which was some 15 months after the insured met his death, he had gone to the Burns residence at 6:30 in the evening, had gone in the house and with the lights turned off, and could not see the same revolver held in his hand. But he further testified on cross-examination:

'Q. Was the door open or closed? A. Open.

'Q. Where were you standing? A. I wasn't to the right of the door, I don't mean away from the door. I was closer to the right side of the door than the left side and was about four and a half feet inside the door.

'Q. Which direction were you facing? A. Toward the outside.

'Q. This was at six-thirty last evening? A. Yes, sir.

'Q. You say the front door was open? A. We opened the front door, yes.

'Q. Was the front door open at the time you were in there with this gun and said you couldn't see it in your hand? A. I would like to change my statement a little. When we first checked it the door was closed, but it later was open. It was tried closed and later open.

'Q. Could you see it in your hand with the door closed? A. No, sir.

'Q. How far did you hold it from your face? A. I held it within a foot and a half or two feet.

'Q. It was pitch dark in there? A. Yes, sir.

'Q. Was the moon shining? A. Not that I recall.

'Q. Was it cloudy yesterday evening? A. I would say so, fairly.'

He identified photographs (Defendant's Exhibits 2 and 3) as fairly representing the body of deceased as he found it. These photographs show the revolver lying near the right hand of the deceased.

Three other witnesses were introduced by plaintiff to show that the deceased was a church member, a public spirited citizen, an active member of the Chamber of Commerce, interested in the present welfare and future of Fredericktown, engaged in stockraising, business and farming. That he was in excellent financial circumstances, apparently happy and contented, planning for the future, had every indication of sanity and appeared to be in full possession of his memtal faculties. That he had not, to their knowledge displayed any suicidal tendencies, did not appear to be worried or have any troubles of a serious nature. One of them knew he was interested in Margaret Burns and was getting a divorce from his wife. Another, an attorney representing deceased's wife in the divorce suit, testified that the property rights between deceased and his wife had been agreed upon and the divorce suit would not have been contested. That in the property settlement, deceased's wife was to receive $45,000 in cash, a new automobile, their residence and a small tract of land, 'That property settlement had been executed subject to that decree of divorce.'

The pistol and the insurance policy were introduced in evidence and plaintiff rested.

At the close of plaintiff's evidence, defendant filed a motion for directed verdict alleging plaintiff's evidence was insufficient as a matter of law to authorize a verdict for plaintiff. This motion was by the court overruled.

L. L. Murphy, a highway patrolman who lived in Fredericktown, testified for defendant. He was in Fredericktown on the night of the tragedy and went to the Burns' residence. He received the call to go at 2:05 a. m., October 13, and arrived at the Burns' home at 2:10 a. m. He testified that the front door of the residence swings from the right, back to the left into the living room, toward the dining room and toward the north. He observed some bullet holes. One was in the northwest corner of the living room ceiling, approximately 28 inches from the west wall of the house and approximately 14 inches from the archway between the living room and the dining room. It was located back from and above the door. There was another bullet hole in the front door. It had entered from the side that would have been the outside of the door if it had been closed, approximately 38 inches from the floor, and ranged slightly downward. It went through the door, struck the back of a dining room chair sitting behind the door and on into the dining room wall, approximately 8 inches above the floor. It could not have entered the door in that manner and followed its course unless the door was open. The witness examined the revolver found on the scene and it was a 38 caliber Colt. It contained four live cartridges and two fired...

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