Stogsdill v. General American Life Ins. Co., s. 37374

• Decision Date: 27 July 1976
• Docket Number: Nos. 37374,37375,s. 37374
• Citation: 541 S.W.2d 696
• Parties: Elizabeth STOGSDILL, Plaintiff-Respondent, v. GENERAL AMERICAN LIFE INSURANCE COMPANY, Defendant-Appellant. . Louis District, Division Three
• Court: Missouri Court of Appeals

Page 696

541 S.W.2d 696

Elizabeth STOGSDILL, Plaintiff-Respondent, v. GENERAL AMERICAN LIFE INSURANCE COMPANY, Defendant-Appellant.

Nos. 37374, 37375.

Missouri Court of Appeals, St. Louis District, Division Three.

July 27, 1976.

Motion for Rehearing and for Transfer Denied Sept. 30, 1976.

Kortenhof & Ely, Frank E. Strzelec, St. Louis, for appellant.

Charles J. McMullin, St. Louis, for respondent.

GUNN, Judge.

This case involves two appeals which we shall treat separately. The first appeal is from a jury verdict awarding plaintiff-respondent $2,500 under a group accidental death policy issued by defendant-appellant; the second is from the trial court's order awarding plaintiff's attorney $400 as costs for expenses in taking a deposition of one of defendant's witnesses. We affirm as to the $2,500 jury verdict and reverse as to the $400 attorney's expenses.

We initially deal with the appeal from the jury verdict awarding plaintiff $2,500 in which the defendant raises three points of alleged error: 1) that plaintiff failed to make a submissible case under the insurance policy provisions and that the judgment was contrary to Missouri law; 2) that the plaintiff's verdict director contained a misstatement of the law and did not meet the brevity and simplicity requirements of Rule 70.01(e); 3) that the trial court erroneously admitted certain photographic evidence.

The principal in this case is Odis Stogsdill whose life was abruptly interrupted by a shotgun blast administered by his wife, Wilma Stogsdill. The dispute in this case centers on the $2,500 accidental death benefit provision of a standard life and accident group insurance policy issued by the defendant insurance company and covering the life of Odis Stogsdill. Plaintiff was the named beneficiary of the proceeds of the policy, and defendant concedes that plaintiff, as named beneficiary, is entitled to $2,500 under the standard life provisions of the policy covering Odis. But defendant challenges plaintiff's right to $2,500 accidental death benefits, charging that Odis was the aggressor in a brouhaha leading to his death. Defendant asseverates that since Odis was the aggressor in a family imbroglio, defendant's motion for directed verdict should have been sustained. Defendant argues that as a matter of law an aggressor killed in the course of his aggression has voluntarily assumed the risk of being killed, and a beneficiary may not, therefore, recover accidental death benefits.

In answer to defendant's initial contention that the judgment on the jury verdict was contrary to Missouri law and that the trial court thereby erred in not sustaining defendant's motion for directed verdict, we first indite some basic legal tenets. First, in reviewing the trial court's action in denying defendant's motion for directed verdict we view the evidence in the light most favorable to the plaintiff. Dollar v. Ozark Engineering Company, 500 S.W.2d 727 (Mo.App.1973); a directed verdict, being a drastic action, should be granted only where reasonable men in an honest and impartial exercise in their duty could not differ on a correct disposition of the case. McCarthy v. Wulff, 452 S.W.2d 164 (Mo.1970); Eyler v. Allison, 500 S.W.2d 49 (Mo.App.1973). Second, in a question involving accidental death insurance the plaintiff need only establish that the insured's death resulted from violent means to create a presumption of accident. Connizzo v. General American Life Ins. Co., 520 S.W.2d 661 (Mo.App.1975). This purely procedural and wholly rebuttable presumption has the effect of shifting the burden of going forward to the defendant, but the ultimate burden of proof by the preponderance of evidence abides at all times with the plaintiff. Di Paoli v. Prudential Insurance Co., 384 S.W.2d 861 (Mo.App.1964); Ward v. Penn Mutual Life Insurance Company, 352 S.W.2d 413 (Mo.App.1961).

The evidence in this case was undisputed that Odis Stogsdill died a violent death from a shotgun wound; therefore, the presumption of accident was established and the burden of going forward shifted to the defendant. Thus, a directed verdict as sought by the defendant at the closing of the plaintiff's case would be error. But going further, in determining if a death is accidental for insurance policy purposes where the insured has voluntarily exposed himself to peril, the keystone is whether death is unforeseeable and unexpected or whether a natural or probable consequence of the insured's actions. Where the danger to which the insured has caused himself to be exposed is by reason of resistance to his own aggression, the foreseeability of death is determined by the character of the aggression and of the resistance likely to be employed in repelling that aggression. Winston v. General American Life Insurance Co., 469 S.W.2d 51 (Mo.App.1971); Perringer v. Metropolitan Life Ins. Co., 241 Mo.App. 521, 244 S.W.2d 607 (1951); Podesta v. Metropolitan Life Ins. Co., 150 S.W.2d 596 (Mo.App.1941). Thus, the mere fact that the insured may have been the aggressor in an altercation ultimately leading to his death does not preclude recovery by a beneficiary. If the beneficiary proves that the resistance offered by the person being assailed was not of the kind or degree that should have been reasonably anticipated by the insured from the character of the initial aggression, the beneficiary may be entitled to recover under the provisions of the accidental death policy. Camp v. John Hancock Mut. Life Ins. Co., 165 S.W.2d 277 (Mo.App.1942). The converse situation, where the insured's assault invites deadly retaliation, would preclude accidental death benefit recovery. Di Paoli v. Prudential Insurance Co., supra; Podesta v. Metropolitan Life Ins. Co., supra; Russell v. Metropolitan Life Ins. Co., 149 S.W.2d 432 (Mo.App.1941). If reasonable minds differ as to the foreseeability of death resulting from the insured's action, a jury question exists. Camp v. John Hancock Mut. Life Ins. Co., supra.

There were two questions for jury consideration in this case: 1) Was Odis the aggressor in the assault? 2) If Odis was the aggressor, were his actions such that death was a foreseeable consequence? There was ample evidence that he was not the aggressor. Plaintiff's evidence was that Odis entered his home on the evening of his death in 'a pretty good mood' and was apparently attacked by two of Wilma's children by a previous marriage; that Odis was struck several times with a long metal flashlight by one of his stepsons and was not faring very well in fending off his attackers when Wilma shot him in the back. Defendant's evidence was that Odis had arrived home in the evening in a mordacious and bellicose mood and began striking Wilma and her children, rendering Wilma unconscious; that when Wilma regained her senses she shot Odis as he was struggling with her sons. There was also evidence that Odis' elbow struck the shotgun during the melee causing it to accidentally discharge. In any event, there is a palpable conflict of evidence as to whether Odis was the aggressor vel non, and we leave the evidentiary conflicts for jury resolution. Lamb v. Heiligers, 532 S.W.2d 820 (Mo.App.1975). Thus, it was for the jury to resolve whether the feral attack made against Odis could have been reasonably anticipated so as to preclude recovery of accidental death benefits by the jury or whether Odis was in fact the aggressor. The jury's finding was favorable to plaintiff.

As to the second part of its argument that the trial court erred in failing to sustain its motion for directed verdict, defendant asserts that plaintiff failed to make a submissible case, in that the group insurance policy covering Odis' life was not introduced into evidence. At trial plaintiff introduced a certificate of insurance and booklet published by the defendant outlining the group insurance policy benefits, including the double indemnity provisions for accidental death. The group policy was not introduced. Defendant for the first time on appeal argues that the plaintiff failed to make a case, because the policy was not introduced. Defendant's argument in this regard arises too late for our consideration. The authority of this court to review allegations of error is recited in Rules 78.07 and 84.13(a) V.A.M.R. To be reviewable, allegations of error must first have been presented to the trial court with a degree of specificity and definiteness to sufficiently apprise the court of the particular acts or rules alleged to be erroneous. Skelton v. General Candy Co., 539 S.W.2d 605 (Mo.App.St.L.Dist.1976); Pasley v. Newton, 455 S.W.2d 43 (Mo.App.1970). 'The office of a motion for a new trial is to gather together the rulings complained of as erroneous, and solemnly and formally present them, one by one, in black and white to the judge in order that he have a last chance to correct his own errors without the delay, or expense, or other hardships of an appeal. This much is required. Less does not preserve the rulings for review.' Fruit Supply Co. v. Chicago, B. & Q.R. Co., 119 S.W.2d 1010, 1011 (Mo.App.1938). Since the trial judge was never presented with an opportunity to rule on this...