Sellars v. John Hancock Mut. Life Ins. Co.

• Decision Date: 08 April 1941
• Docket Number: No. 25597.,25597.
• Citation: 149 S.W.2d 404
• Parties: SELLARS v. JOHN HANCOCK MUT. LIFE INS. CO.
• Court: Missouri Court of Appeals

149 S.W.2d 404

SELLARS v. JOHN HANCOCK MUT. LIFE INS. CO.

No. 25597.

St. Louis Court of Appeals. Missouri.

April 8, 1941.

Rehearing Denied April 22, 1941.

Appeal from St. Louis Circuit Court; Thos. J. Rowe, Jr., Judge.

"Not to be reported in State Reports."

Action by Grace Sellars against the John Hancock Mutual Life Insurance Company, to recover under the double indemnity provision of a life insurance policy. Judgment for plaintiff, and defendant appeals.

Reversed.

Leahy, Walther & Hecker and Donald J. Meyer, all of St. Louis, for appellant.

Harold C. Ackert, of St. Louis, for respondent.

BENNICK, Commissioner.

This is an action by plaintiff beneficiary to recover under the double indemnity provision of a policy of insurance issued by defendant upon the life of her son, John Otis Meredith, who concededly came to his death on August 19, 1938, as the result of various gunshot wounds inflicted upon him on August 15, 1938.

The sole point at issue in the case is whether, under the circumstances of the case, the death of the insured was the result of bodily injury sustained by accidental means within the coverage of the policy.

Tried to a jury, a verdict was returned in favor of plaintiff, and against defendant, for the aggregate amount of $268.75. Judgment was entered according to the verdict; and defendant's appeal to this court has followed in the usual course.

To make her prima facie case, plaintiff showed no more of the facts relating to the death of the insured than that he had died from the effects of the gunshot wounds, which showing of death by violence, without more appearing, gave rise to the presumption that death had been accidental or by accidental means. McKeon v. National Casualty Co., 216 Mo. App. 507, 270 S.W. 707; Gilpin v. Aetna Life Insurance Co., 234 Mo.App. 566, 132 S.W.2d 686.

This upon the theory that in a case of this character, where no more is shown than the fact of the insured's violent death without the benefit of any of the explanatory circumstances, then such fact, considered in the light of the presumption of love of life which obtains in the case of the normal individual, is so repugnant to the idea of death by intention or invitation as to afford the presumption that death was by accident or accidental means, and thereby satisfy the plaintiff's initial burden of proof upon such issue. However, such presumption, while accomplishing the function of evidence in the respect noted, is nevertheless not evidence of the fact presumed, but instead is merely a rule of procedure or rebuttable legal presumption, which, when raised, immediately casts upon the defendant the burden of going forward with the evidence, while at the same time leaving the burden of proof upon the plaintiff of finally establishing, as the essence of her case, that the death of the insured resulted from bodily injury sustained through accidental means within the coverage of the policy. When contrary facts appear, the presumption disappears; and if the defendant's evidence is positive, clear, and undisputed that the death of the insured did not result from bodily injury sustained through accidental means, then there is no issue of fact for the jury to determine, and the question should be resolved by the court as one of law by giving a peremptory instruction in favor of the defendant. But on the other hand, if the defendant's evidence tending to show an absence of liability on its part is not positive, clear, and certain; if it, within itself, contains damaging and impeaching facts; or if the plaintiff, in rebuttal, adduces countervailing evidence supporting the conclusion that death resulted from a cause within the coverage of the policy, then the ultimate question is one of fact to be determined by the jury as in the case of any other factual issue. Griffith v. Continental Casualty Co., 299 Mo. 426, 253 S.W. 1043; Griffith v. Continental Casualty Co., 290 Mo. 455, 235 S.W. 83; Brunswick v. Standard Accident Insurance Co., 278 Mo. 154, 213 S.W. 45, 7 A.L.R. 1213; Berne v. Prudential Insurance Company of America, Mo.App., 129 S.W.2d 92; Gilpin v. Aetna Life Insurance Co., supra.

In the case at bar, in obedience to its duty of going forward with the evidence after plaintiff had made her prima facie case by showing the death of the insured from gunshot wounds inflicted upon him four days earlier, defendant put on its evidence disclosing the actual circumstances under which the insured had received the wounds which resulted in his death. No countervailing evidence was offered on the part of plaintiff, so that upon the question of whether defendant should have had a peremptory instruction at the close of the entire case, the only matter to be considered is whether defendant's evidence may be said to have clearly and unequivocally established that death was not by accidental means within the coverage of the policy.

The case presents a state of facts of very special and unusual interest.

On the night of August 12, 1938, two young people, Miss Peggy Gross and Mr. Daniel Cox Fahey, Jr., both residents of St. Louis County, Missouri, had attended a concert together in Shaw Park, in the City of Clayton.

At the conclusion of the concert, they started out in Fahey's automobile to return to the home of Miss Gross on Warson Road, and upon coming to Ladue Road, slowed up for a stop sign at the corner of the intersection.

At this point, two men — the one, Meredith, the insured in this case, and the other, one Couch, his companion, both of whom had previously been inmates of the Missouri State Penitentiary—stepped upon the running board flourishing revolvers, and ordered Fahey to pull over to the side of the road.

Upon Fahey's attempt to speed up his car, one of the men struck him in the face; and after the car was stopped, both Fahey and Miss Gross were compelled to get in the back seat under cover of Couch's revolver, while the insured took the wheel and started for the ultimate destination which he and Couch had in mind, and which proved to be a farm where the insured's estranged wife lived with her parents near Effie, Minnesota, some distance north of Minneapolis.

Thus it appears that the purpose of Couch and the insured in stopping the car was not to perpetrate a holdup upon its occupants as they had at first intimated when they jumped upon the running board and began flourishing their revolvers, but that instead what they wanted was the car itself in which to make their getaway from the vicinity of St. Louis, to which end they felt obliged to require Fahey and Miss Gross to accompany them in order to prevent them from reporting its seizure to the police. As they drove along through the night, they began boasting to Fahey and Miss Gross of their criminal exploits and of the fact that they were wanted by the police in St. Louis; and it was further shown, by official records, that on August 11, 1938, the day before the kidnapping of Fahey and Miss Gross and the seizure of their car, warrants had been issued for the arrest of both men upon a complaint filed with the United States Commissioner for the Northern District of Texas, Dallas Division, charging them, along with two women, with a violation of the National Moter Vehicle Theft Act, 18 U.S.C.A. § 408, in having transported a stolen automobile from Greenwood, Missouri, to Fort Worth, Texas, on the previous August 6th.

The parties arrived in Minneapolis about ten o'clock in the evening of August 13th, and after passing through the city, drove on to a point some fourteen or fiteen miles beyond, where Fahey and Miss Gross were put out of the car and left behind in a patch of woods about one hundred yards off the road, after they had been gagged and their wrists and ankles secured with picture wire.

As soon as Couch and the insured had gone on their way, Fahey succeeded in getting rid of his gag, but finding it impossible to free himself or Miss Gross from the wire with which they were bound, hopped down to the roadside, where he shortly attracted the attention of some passers-by, who were disinclined to believe his explanation of his unusual predicament, but at any rate liberated him and Miss Gross and took them to a farmhouse in the near vicinity, where a call was put in for the Minneapolis police.

In due course the matter was reported to the St. Paul Division of the Federal Bureau of Investigation; and early the following morning Fahey and Miss Gross were questioned at length by agents of the Bureau, who had them identify the photographs of Couch and the insured as the men who had kidnapped them and seized their car, the description and license number of...