State ex rel. Prudential Ins. Co. of America v. Shain

• Decision Date: 17 August 1938
• Docket Number: 35705
• Citation: 119 S.W.2d 309,342 Mo. 1049
• Parties: State of Missouri at the relation of Prudential Insurance Company of America, Relator, v. Hopkins B. Shain et al., Judges of the Kansas City Court of Appeals
• Court: Missouri Supreme Court

119 S.W.2d 309

342 Mo. 1049

State of Missouri at the relation of Prudential Insurance Company of America, Relator, v. Hopkins B. Shain et al., Judges of the Kansas City Court of Appeals

No. 35705

Supreme Court of Missouri

August 17, 1938

Opinion and judgment of Kansas City Court of Appeals quashed.

William C. Michaels, Ralph M. Jones and Hulen & Walden for relator; Michaels, Blackmar, Newkirk, Eager & Swanson and Ralph W. Hyatt of counsel.

(1) The opinion of the Kansas City Court of Appeals is in conflict with the decisions of this court that a member of a conspiracy is responsible for any act by any of the conspirators in furtherance of or proximately resulting from the conspiracy. State v. Adams, 98 S.W.2d 632, 339 Mo. 926, 108 A.L.R. 838; State v. Linders, 299 Mo 671, 253 S.W. 716; State v. Vaughan, 98 S.W. 2, 200 Mo. 1; State v. Parr, 296 Mo. 406, 246 S.W. 903; State v. Nasello, 30 S.W.2d 132, 325 Mo. 461. (2) The opinion is in conflict with the decisions of this court that abandonment of a crime does not relieve a conspirator therein for responsibility for another crime emanating therefrom, or, closely connected in point of time, place, and causal relation, as where the second crime was committed in flight from the scene of the initial crime to prevent detection or promote escape. (3) The opinion conflicts with the decisions of this court in failing to give effect to the rule that proofs of death are conclusive unless contradicted or explained, for there being no evidence inconsistent with or contradictory of the admission in the proofs that the death was not accidental, the evidence did not justify submission of the case to the jury. Kirk v Metropolitan, 336 Mo. 765, 81 S.W.2d 333; Brennecke v. Ganahl Lbr. Co., 329 Mo. 341, 44 S.W. (2) 627; Yerxa, Andrews & Thurston v. Viviano, 44 S.W.2d 98; State ex rel. Thomas v. Trimble, 259 S.W. 1052, 303 Mo. 266; Mockowick v. Railroad, 196 Mo. 571, 94 S.W 256. (4) The opinion is in conflict with the decisions of this court that where the plaintiff fails to make out a case, and the judgment is for the right party, it should not be reversed regardless of alleged errors. Merriam v. Star-Chronicle Pub. Co., 335 Mo. 937, 74 S.W.2d 592; Walsh v. St. L. Exposition & Music Assn., 101 Mo. 550, 14 S.W. 722; State ex rel. Boeving v. Cox, 310 Mo. 367, 276 S.W. 869.

Hunter & Chamier and Jerry M. Jeffries for respondents.

(1) The opinion of the Court of Appeals does not conflict with any decision of this court. (2) The opinion of the Kansas City Court of Appeals follows the decisions of this court and is not in conflict with any of its previous decisions. State v. May, 142 Mo. 153; State v. Webb, 216 Mo. 378; Mockowick v. Railroad, 196 Mo. 550; Cox v. Mut. Life Ins. Co., 109 S.W.2d 694; Ward v. Scott Mill. Co., 47 S.W.2d 250; Smith v. Met. Life Ins. Co., 107 S.W.2d 808.

Cooley, C. Westhues and Bohling, CC., concur.

OPINION

COOLEY

Certiorari to the Kansas City Court of Appeals, whereby relator seeks to quash the opinion of that court in a cause wherein Wilma Eagan was plaintiff and relator was defendant. Said defendant had judgment in the trial court, from which the plaintiff appealed to the Kansas City Court of Appeals. That court reversed and remanded the cause in an opinion reported in Eagan v. Prudential Ins. Co. of America, 107 S.W.2d 133. Relator alleges that respondents' opinion is in conflict with prior decisions of this court, to be hereinafter noticed. In a proceeding of this kind we are concerned only with the question of conflict (State ex rel. Hauck Bakery Co. v. Haid et al., 333 Mo. 76, 62 S.W.2d 400, and cases cited), and we look to the Court of Appeals' opinion for the facts. From it we glean the following:

Joe Eagan held an insurance policy, issued by relator, providing for payment of $ 413 upon insured's death and the further sum of $ 413 (double indemnity) if insured's death resulted from bodily injuries solely through "external, violent and accidental means" (Italics ours.) The policy was in force when Eagan died. Relator paid the $ 413 unconditionally provided for but refused to pay the other $ 413 on account of alleged accidental death, and this suit, brought by Eagan's widow and administratrix (he having died intestate), was to recover said latter $ 413 as for accidental death.

Relative to how insured met his death respondents' opinion states:

"There are facts in evidence tending to show that, about 12 P. M. on March 20, 1935, and immediately prior to the injury from which he died, the deceased had been engaged with one Evans in an attempted burglary near Moberly, Missouri, of a building known as the Outside Inn, in which an eating place was conducted by Mr. and Mrs. Charles Harding, by forcibly breaking a window in said building some distance above the ground and attempting to enter such building through the same. The building at such time had been closed and locked for the night. No one was on the inside of the same and no one on the outside, other than Evans and the deceased. The proprietors had left and gone to Moberly, where they lived; and, for some reason, they looked up Jerry P. Mize, a police officer of that city, and took him in their car and drove back to the Inn where they came upon the deceased and Evans. When their presence was discovered by officer Mize and the Hardings, they both were on the ground below the window. When they discovered the presence and approach of the police officer, Evans immediately made an assault upon him and opened a gun fire attack on him. This attack was resisted and resulted in both the insured and Evans being shot by the police officer. The evidence does not disclose that the deceased engaged in such attack or that he, in any manner, openly resisted the attempt of the officer to arrest him. When Mize came up, the deceased backed away and crouched in a corner of the building without any manifestation of resistance, where he was shot by Mize, the officer, who stated that he was under the impression that the deceased was preparing to shoot at him. The shot took effect in the head; and the insured, within a short time thereafter, died from the effects of such wound. No weapon of any kind was found on him. Mize, the police officer, testified that he intentionally shot Eagan because he thought Eagan was going to shoot him; that, when Eagan began to crouch down in the corner of the building, he thought that he was getting into a position to shoot at him; and that he thereupon shot him."

At the trial the plaintiff requested and the court refused an instruction, F, reading:

"The court instructs the jury that it is not sufficient to avoid the policy that the death of the insured was the consequence of some illegal act of his, unless it occurred while engaged in such illegal act and as a direct result thereof; and even though you find that the deceased committed an assault on or was engaged in combat with Mize, this does not relieve defendant, if the insured had ceased from the assault or retreated as far as he could from the combat at the time he was killed."

Respondents held the refusal of said instruction to have been reversible error, saying:

"In connection with their complaint as to the refusal of instruction F, the plaintiffs point out evidence in the record from which it might be found that, at the time of the injury which occasioned his death, the insured was not engaged in an attempt to burglarize but had desisted from such attempt, if he had been engaged therein, and also evidence from which it might be found that he had never engaged in the assault on the police officer or, if so, he had quit such assault and had retreated therefrom at the time that he was shot.

"In view of such evidence, the plaintiffs were entitled to such instruction upon their theory of the case. The propositions of law embraced therein were correct and do not appear to have been fully covered by any of the instructions given by the court upon its own motion, at least not in the manner to which the plaintiffs were entitled.

"There is evidence tending to show that, at the time that the deceased was shot and killed, he and Evans had desisted from the burglary or the attempt thereat and were not engaged therein. They were standing on the ground below the window and were not making any effort to enter the building when apprehended by the police officer, Mize. At least, the circumstances were such that it became a question for the jury whether they were engaged in an attempt at burglary at the time that Mize came upon them; and the evidence was also such that it became a question for the jury to determine whether the insured at any time engaged in the assault on Mize, the police officer who shot him, or whether, if he had ever been so engaged, he had withdrawn therefrom and retreated as far as he could from it at the time that he was shot. There is no evidence tending to show that he committed any overt act in an assault on the police officer or that he made any open manifestation at any time against such officer. It was not shown that he was armed or that he knew that Evans was armed until Evans drew his pistol and fired. When the police officer approached, he immediately retreated until stopped by the walls of the building, when he crouched down in a corner against the wall where he was at once shot by the police officer. It cannot be inferred from the mere fact that the insured was in a conspiracy with Evans to burglarize -- from which he had desisted -- that he was in a conspiracy to assault the police officer and shoot him. It was not a necessary consequence of his act of engaging in the burglary that he should be killed. There was no one present at the time the attempt at burglary was initiated. Neither was it a matter of...