Robinson v. Benefit Ass'n of Railway Employees, No. 26647.

CourtMissouri Court of Appeals
Writing for the CourtAnderson
Citation183 S.W.2d 407
PartiesROBINSON v. BENEFIT ASS'N OF RAILWAY EMPLOYEES.
Decision Date14 November 1944
Docket NumberNo. 26647.
183 S.W.2d 407
ROBINSON
v.
BENEFIT ASS'N OF RAILWAY EMPLOYEES.
No. 26647.
St. Louis Court of Appeals. Missouri.
November 14, 1944.

[183 S.W.2d 408]

Appeal from St. Louis Circuit Court, Ernest F. Oakley, Judge.

"Not to be reported in State Reports."

Action by Bell Robinson against the Benefit Association of Railway Employees, a corporation, to recover the balance due on a certificate of accident insurance. From a judgment for plaintiff, defendant appeals.

Reversed and remanded.

Robinson M. Jordan and Raymond J. Lahey, both of St. Louis, for appellant.

Ellis S. Outlaw, of St. Louis, and John J. Spencer, Jr., of Washington, D. C., for respondent.

ANDERSON, Judge.


This is a suit on a certificate of accident insurance issued to one Jeff Oatis, through a welfare plan contract between the appellant insurer and the National Bearing Metals Corporation, employer of Oatis. The certificate provided that in the event of the death of the insured through accidental means, the insurer would pay to the beneficiary, the plaintiff in this suit, the sum of $1,000. After the death of the insured, the plaintiff made a claim for the said sum of $1,000, and the appellant denied liability, contending that insured's death was not due to accidental means. Thereafter, appellant offered and plaintiff accepted $100 in full settlement of plaintiff's claim. This suit is for the difference between that amount and the face of the policy, plaintiff's theory of recovery being that the compromise agreement was without consideration and therefore void. A verdict and judgment were entered below for plaintiff for $1,080, the amount claimed, together with interest, and a ten percent penalty for vexatious refusal to pay under Section 6040, R.S.Mo.1939, Mo.R.S. A. § 6040.

The petition alleged that on September 9, 1941, defendant issued the certificate of insurance; that plaintiff was named beneficiary therein; that insured died on February 28, 1942; and that plaintiff furnished proofs of death, as required by the terms of the certificate, and demanded payment of $1,000, which sum defendant refused to pay, but instead paid plaintiff $100 in full settlement of her claim. The prayer of the petition asked for judgment in the sum of $900, together with interest and an attorney's fee and ten percent penalty for vexatious refusal to pay.

In its answer, defendant admitted the issuance of the certificate of insurance, but denied specifically that insured met his death by accidental means.

The answer further alleged that said certificate provided that it did not cover any loss resulting directly or indirectly from a commission or attempt to commit a felony by the insured; that at the time the insured met his death he was engaged in the commission or the attempt to commit a felonious assault or murder; that a controversy arose between the plaintiff and the insurer, in that plaintiff claimed that defendant was liable under the policy and defendant contended that it was not liable; that in full compromise, payment, and satisfaction of said disputed claim defendant paid plaintiff the sum of $100 in consideration of the surrender of said certificate. The answer prayed that defendant go hence without day.

In her reply, plaintiff admitted the payment to her of $100, and the execution of

183 S.W.2d 409

a release of her claim, but denied that said release was made in good faith by defendant, and further denied that a controversy and dispute existed between her and defendant at the time.

The certificate of insurance was dated September 9, 1941, and provided for the payment of $1,000 in the event insured died as the result of external, violent, and accidental means.

On February 20, 1942, the insured died as a result of injuries sustained in a fight. On that night, insured and others were engaged in a crap game, on the second floor of premises known as 2304 or 2306 Cole street.

Plaintiff's version of the affair was detailed by one Eddie Wolf, who testified:

"I was present at the time the argument started. There were eight or ten other people in the house when I arrived, about 9:30 in the evening. All were shooting dice. Oatis came in afterwards, `and started betting.' He lost three or four bets. The last bet he made was for 80¢. He didn't have the 80¢. When the fellow asked for the money, Oatis said: `I will give it to you,' and talked on, and then said he didn't have it. The other fellow became angry about it. There were several in the room. They pulled out their knives. I said, `He will give it to you sometime.' They all wanted to jump on him. I told Oatis, `If I was you, I would just go on out.' He took me at my word, and started out of the door. He went from the middle room, through the kitchen, out onto the porch. I didn't go out there. I heard all of them scuffling on the porch. When I got out there, it was all over. Oatis was lying on the porch on his back. His head was toward the steps, and his feet were toward the room out of which he had just come. I saw them all pull out knives.

"Q. Did you see Jeff Oatis pull a knife? A. Jeff Oatis had a knife; yes, he had a knife. * * * He didn't cut no one in there when he pulled his knife out of the pocket. He went out of the room when I told him `Oatis, you can't win; if I were you I would leave'; he went out of the room. They followed him out of the room. * * * Alonzo Harris and four or five others followed Oatis out of the kitchen and onto the porch; * * * He (Oatis) had the knife in his hand.

"Q. He had it out, didn't he? A. Yes.

"Q. And it was open? A. Sure."

Defendant's version of the fight was testified to by Alonzo Harris, who stated:

"The way the trouble started, Joe Tucker and Jeff Oatis made a bet — made about an 85¢ bet, and Jeff Oatis refused to pay. I spoke to him about it. * * * They were arguing and disputing, and I said, `Man, why don't you pay the man if you lose the money on the bet?' Then he (Oatis) asked me what in the hell I had to do with it. I told him that he should pay the man off and get the thing off quiet — carry it off quiet. * * * And with that, he pulled his knife at me, and he said, `I will kill all you sons-of-bitches.' When I step back and grab at a grip, I miss the grip, and he thought I had something in my hand. So I grabs the chair, and I holds the chair between him and me, and Grace Fant tries to get him to go out; she gets him as far as the porch, and she comes back. * * * He left the room and went as far as the porch, to go down the steps, and he comes back and meets me."

Harris further testified that Oatis, when he came back, had a knife in his hand; that at that time witness was standing in the kitchen, about six feet from the door. Oatis had the knife raised, and "was striking all the time"; that he, witness, in order to protect himself, struck Oatis several times with the chair.

"Q. Did you at any time threaten him? A. Never had.

"Q. Did you make any motions toward him with the chair at any time when he had the knife? A. No. He pulled his knife on me, and that was the cause.

On cross-examination Alonzo Harris testified:

"Q. You followed him out? A. He was ahead of me; and he opened the door; and I pushed him back off of me with a chair.

"Q. Why did you go to the kitchen? A. I wanted to get out. * * *

"Q. Were you at the side of him? A. I was facing him.

"Q. He was backing up? A. Yes; he was backing up.

"Q. You followed him? A. Yes — to the door. I was `facing' him.

"Q. He backed up out of the door, or room, with a knife in his hand? A. Sure, yes; he did. * * *

"Q. You followed him, did you? A. `Followed' him?

183 S.W.2d 410

"Q. Yes. A. No; I didn't follow him. No. I peeped out of the door to see where he was, and he strikes at me and hits. * * *

"Q. Now, I will ask you this question: Where was he when he first started to back up? A. He was at the corner of the table.

"Q. What was the distance between the table and the door leading to the kitchen? A. About three feet. * * *

"Q. You and he continued backing on out of there, and in and out of the kitchen, and onto the porch? A. No, I didn't follow him no further. I didn't go that far. When he was striking at me, I was holding the chair between me and him. * * *

"Q. Was it just before or at the time of reaching the door between that room and the kitchen door? A. Well, he was striking at me all the time; I know that.

"Q. Did he cut you in the kitchen, or before he got to the kitchen door? A. Well, he cut me in the middle room at the door coming out of the room where the game was. * * *

"Q. How far did you go then after he cut you? A. I didn't go no further. You see, I was backing from him. I sits my chair down and I goes to the door. * * * The door in the kitchen. Then he struck at me and cut me with that long knife of his.

"Q. You got the chair the second time? A. I met him in the door there.

"Q. Where was that when that happened? A. That was in the door where you enter from the porch.

"Q. Was that the door that entered from the porch to the kitchen where you hit him? A. Sure, that's where I hit him. * * *

"Q. You peeped out of the kitchen door — A. (Intervening) Yes.

"Q. (Continuing) — and onto the porch — A. (Intervening) Yes.

"Q. (Continuing) — to see where he had gone? A. Yes, but he had not, * * *. He strikes at me when I peeps out, and I got struck when he hit me there."

Police officers arrived soon after the fight ended. They found insured, lying on the back porch, unconscious. They took him to a hospital, where he later died as a result of skull fracture.

After the death of the insured, plaintiff made claim on the policy through the employer, National Bearing Metals Corporation. The latter sent for plaintiff, and, according to her testimony, when she arrived at the company's office she was told that they would make her a present of $100 but she refused their offer. She stated they told her there was no liability under the policy. Later she was sent for again. On...

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11 practice notes
  • Hammontree v. Central Mut. Ins. Co., Nos. 8361
    • United States
    • Missouri Court of Appeals
    • January 5, 1965
    ...192(4, 5). 9 Loulos v. United Security Ins. Co., Mo.App., 350 S.W.2d 87, 89(2); Robinson v. Benefit Ass'n. of Railway Employees, Mo.App., 183 S.W.2d 407, 413(7); Schaeffer v. Northern Assur. Co., Mo.App., 177 S.W.2d 688, 10 State ex rel. Continental Life Ins. Co. of Kansas City v. Allen, 30......
  • Perringer v. Metropolitan Life Ins. Co., No. 7026
    • United States
    • Missouri Court of Appeals
    • December 20, 1951
    ...v. John Hancock Mutual Life Ins. Co. of Boston, Mass., Mo.App., 165 S.W.2d 277; Robinson v. Benefit Ass'n of Railway Employees, Mo.App., 183 S.W.2d 407; Meister v. General Accident, Fire & Assurance Corp., 92 Or. 96, 179 P. 913, 4 A.L.R. In this case the undisputed evidence all shows that t......
  • Noble v. Missouri Ins. Co., No. 27239.
    • United States
    • Court of Appeal of Missouri (US)
    • September 16, 1947
    ...Mo.App., 300 S.W. 1026; Mills v. American Mut. Ass'n, Mo. App., 151 S.W.2d 459; Robinson v. Benefit Ass'n of Railway Employees, Mo.App., 183 S.W.2d 407. The insured's substantial evidence of his total disability made a prima facie case on both the merits and the question of lack of consider......
  • Ennis v. McLaggan, No. 11559.
    • United States
    • Missouri Court of Appeals
    • November 21, 1980
    ...criticism of such a rule, this "old common law rule" is well established in Missouri. Robinson v. Benefit Ass'n of Railway Employees, 183 S.W.2d 407, 411 (Mo.App.1944). It has been followed in numerous cases. City of St. Louis v. Senter Commission Co., 343 Mo. 1075, 124 S.W.2d 1180, 1184 (1......
  • Request a trial to view additional results
11 cases
  • Hammontree v. Central Mut. Ins. Co., Nos. 8361
    • United States
    • Missouri Court of Appeals
    • January 5, 1965
    ...192(4, 5). 9 Loulos v. United Security Ins. Co., Mo.App., 350 S.W.2d 87, 89(2); Robinson v. Benefit Ass'n. of Railway Employees, Mo.App., 183 S.W.2d 407, 413(7); Schaeffer v. Northern Assur. Co., Mo.App., 177 S.W.2d 688, 10 State ex rel. Continental Life Ins. Co. of Kansas City v. Allen, 30......
  • Perringer v. Metropolitan Life Ins. Co., No. 7026
    • United States
    • Missouri Court of Appeals
    • December 20, 1951
    ...v. John Hancock Mutual Life Ins. Co. of Boston, Mass., Mo.App., 165 S.W.2d 277; Robinson v. Benefit Ass'n of Railway Employees, Mo.App., 183 S.W.2d 407; Meister v. General Accident, Fire & Assurance Corp., 92 Or. 96, 179 P. 913, 4 A.L.R. In this case the undisputed evidence all shows that t......
  • Noble v. Missouri Ins. Co., No. 27239.
    • United States
    • Court of Appeal of Missouri (US)
    • September 16, 1947
    ...Mo.App., 300 S.W. 1026; Mills v. American Mut. Ass'n, Mo. App., 151 S.W.2d 459; Robinson v. Benefit Ass'n of Railway Employees, Mo.App., 183 S.W.2d 407. The insured's substantial evidence of his total disability made a prima facie case on both the merits and the question of lack of consider......
  • Ennis v. McLaggan, No. 11559.
    • United States
    • Missouri Court of Appeals
    • November 21, 1980
    ...criticism of such a rule, this "old common law rule" is well established in Missouri. Robinson v. Benefit Ass'n of Railway Employees, 183 S.W.2d 407, 411 (Mo.App.1944). It has been followed in numerous cases. City of St. Louis v. Senter Commission Co., 343 Mo. 1075, 124 S.W.2d 1180, 1184 (1......
  • Request a trial to view additional results

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