White v. Missouri Ins. Co., 23852.

• Decision Date: 06 April 1937
• Docket Number: No. 23852.,23852.
• Citation: 103 S.W.2d 514
• Parties: WHITE v. MISSOURI INS. CO.
• Court: Missouri Court of Appeals

103 S.W.2d 514

WHITE v. MISSOURI INS. CO.

No. 23852.

St. Louis Court of Appeals. Missouri.

April 6, 1937.

Rehearing Denied April 23, 1937.

Appeal from St. Louis Circuit Court; James M. Douglas, Judge.

"Not to be published in State Reports."

Action to recover disability benefits by Luella White against the Missouri Insurance Company. From a judgment on a verdict for plaintiff, defendant appeals.

Reversed and remanded on condition.

Fordyce, White, Mayne & Williams, of St. Louis, for appellant.

J. E. Swanston, of St. Louis, for respondent.

McCULLEN, Judge.

This suit was instituted to recover disability benefits provided for in a policy of insurance issued by appellant defendant to respondent plaintiff. It was originally filed in a justice of the peace court where there was a judgment for plaintiff. On appeal to the circuit court of the city of St. Louis, a trial before the court and a jury resulted in a verdict for plaintiff in the sum of $221.60, which included penalties of $15.60 damages and $50 attorney's fees for defendant's vexatious refusal to pay. From the judgment rendered thereon defendant has duly appealed.

The provision of the insurance policy upon which the controversy arises is as follows: "Disability benefits will not be paid for * * * at any time for disability resulting from violation of law, immorality, alcoholism, venereal diseases or insanity. * * *"

Plaintiff claimed disability benefits under the policy at the rate of $6 per week for 26 weeks.

No question is raised as to the issuance of the policy by defendant, nor is there any question as to it being in force when plaintiff sustained the injuries for which she claimed disability benefits.

Defendant earnestly contends that the court erred in refusing to direct a verdict in its favor at the close of the whole case; that the evidence conclusively showed that the disability of plaintiff arose directly out of violation of law, namely playing cards for money, and that under the express terms of the policy of insurance plaintiff was not entitled to recover.

The case was submitted in this court on brief for appellant defendant, but no brief was filed on behalf of respondent plaintiff.

The evidence shows that in November, 1933, plaintiff attended a gathering of her friends or club members at 1006 North Vandeventer avenue in the city of St. Louis; that the party started somewhere around 10 or 11:30 o'clock in the evening and lasted practically the rest of the night; that plaintiff knew all the folks there except a strange man. Plaintiff could not give the names of the persons who were there but said they were her friends. She did not know just how many but there were seven or eight to begin with; that about midnight they started a penny ante poker game which lasted until about 10 o'clock the next morning; that "folks dropped out and dropped in"; that finally every one quit the game but the strange man and plaintiff. Referring to the poker game and the strange man, plaintiff testified: "We all played socially for awhile, and then finally every one quit but he and I, and he cheated me, and I said I wouldn't stand for that, and I took my money, a little change I had in there, out. I seen him when he cheated." She testified further that she saw the strange man when "he flipped a king"; that she saw that clearly; that she said then that he cheated and she would not stand that; that she picked her money up and the strange man said: "That's all right, that's all right" and just went out; that she stayed there for about 30 or 40 minutes and then went down to a cab standing in front of the building for the purpose of going home; that as she pulled the door open and stepped out, she was struck across the head by the strange man who had been in the game; that he struck her with a heavy stick, first across the head, and as he was striking her said: "Give me my money"; that she was struck more than once and her wrist was broken; that just immediately before she was struck, she did not say anything to the strange man to offend him; that she did not lay her hands on him or do anything; that there were no threats of violence either by the strange man or herself; that she could not have done anything because he struck her as soon as she stepped out the door; that she was wholly disabled for a year and a half; that after she received her injuries she went to Hospital No. 2 where she remained for five days, and that Dr. Chester Poe then began to treat her; that she made demand on the defendant company to pay her but she had not been paid anything.

On cross-examination plaintiff testified that the party was held on the second floor of the house mentioned, over a barber shop; that the stairs from the second to the first floor of the building came out flush with the building line. She testified that she told the police officer that she was struck but that she did not tell him that she was struck by a man named Harris because she never did know his name; that the man left pretty soon after she caught him cheating; that it was about 20 minutes or a half hour thereafter that she left and he was waiting downstairs and struck her; that they had no words of any kind; that they had no argument; "they had a difference;" that she guessed he had been playing an hour or more before she caught him cheating; that the money he talked about referred to the money in the poker game; that he could not have referred to any other with her because she never saw him before; that she thought she had the winning hand until she caught him slipping the king into his hand and that the stakes in that particular pool were about $3, which she would have won if the game "had been on the square"; that "if he had gotten by with that he would have won the jack pot. That is what the difference arose out of" and that was why she quit playing. Plaintiff testified that the only ones betting were herself and the strange man and that the difference was over that $3.

Lucy Randall testified on behalf of plaintiff that it was at her house where the party was held; that it was just a gathering of friends that played poker every once in awhile, a sort of club; that she thought the name of the strange man was Connivis; that he came in with Mr. Morris who was a member that usually attended the gatherings; that she had never seen the strange man until that night; that they were playing a little poker and that he was playing; that they played pretty much until "every one got broke"; that they were playing what was commonly known as penny ante poker which is started off at a penny or two pennies, whatever any one wishes to play; that plaintiff and the strange man were the last ones that played and they were the only two in the game when the argument came up; that they did not have any argument at all during the time when they were all playing; that witness went back into the kitchen and every one stopped playing except those two; that witness came back in the room and plaintiff said they had an argument about flipping a card; that he had changed a card on her; that all she heard the man say was that it was all right; that "no one seemed like they were mad" and that after the strange man said it was all right he went on downstairs and he did not say anything or make any threats against plaintiff or indicate that he had any feelings against her; that he left peacefully; that plaintiff stayed a little while longer, half an hour or something like that, and then left to go home; that plaintiff went downstairs and that was when she was hit. The witness did not see or hear any part of the trouble downstairs. On cross-examination the witness testified that she lost about 50 or 60 cents; that her boy friend also lost money; that the only people who won were plaintiff and the stranger and that it finally got to a point where it was a game between plaintiff and the stranger.

Enoch Mann testified as a witness for plaintiff that he worked at a barber shop located in the same building below the place where the poker game was played; that the strange man came downstairs first, walked up to the pool room, got a cue, broke it off and was standing out there "like he was going to take some one"; that at this time plaintiff was coming down the stairs and just as she stepped out of the doorway on to the sidewalk he came running to her and "hauled off and hit her twice"; that the witness and another boy ran out and told him to quit hitting the lady with that cue that he would kill her, and that he said: "Make her give me my money."

Dr. Chester A. Poe, who treated plaintiff, described her injuries and stated that in his opinion she was totally disabled for a period of at least 26 weeks.

Roy Martin, manager of the south St. Louis district of the defendant company, testified that he visited plaintiff to ascertain how she received her injuries and that she told him she fell down the steps; that he told her he would make an investigation and if it happened the way she said it did the company would pay her; that if they found she had been in a fight or violation of the law there would not be any payment; that he went to the police station and city hospital and after examining the records refused to make payment; that payment was declined on the strength of such records and the information contained therein.

It will be observed that the clause in the policy which provides for disability benefits states that disability benefits will not be paid "for disability resulting from violation of law."

Under section 4303, R.S.Mo.1929 (Mo.St. Ann. § 4303, p. 2995) it is a misdemeanor for any person to play at any game for money with cards, etc.

Defendant has not cited, nor have we found any Missouri case in which the facts in evidence and the policy provision were exactly like those in the case at bar.

There appear to be two lines of authority in the various decisions which have been rendered on the construction of insurance...