Winter v. Metropolitan Life Ins. Co.

• Decision Date: 06 June 1939
• Docket Number: No. 25005.,25005.
• Parties: WINTER v. METROPOLITAN LIFE INS. CO.
• Court: Missouri Court of Appeals

129 S.W.2d 99

WINTER v. METROPOLITAN LIFE INS. CO.

No. 25005.

St. Louis Court of Appeals. Missouri.

June 6, 1939.

Rehearing Denied June 20, 1939.

Appeal from St. Louis Circuit Court, Harry F. Russell, Judge.

"Not to be reported in State Reports."

Suit by Lottie Winter against the Metropolitan Life Insurance Company, a corporation, to recover double indemnity death benefits on three life insurance policies. From a judgment for plaintiff in the sum of $740 and interest, the defendant appeals.

Affirmed.

Fordyce, White, Mayne, Williams & Hartman and R. E. LaDriere, all of St. Louis (Harry Cole Bates, of New York City, of counsel), for appellant.

Thomas E. Dowling and John P. Griffin, both of St. Louis, for respondent.

McCULLEN, Judge.

This suit was instituted by Lottie Winter, as plaintiff, before a justice of the peace in the City of St. Louis, Missouri, to recover from the defendant insurance company what are commonly called double indemnity death benefits on three policies of insurance issued by the defendant company insuring the life of Clarence Henry, the son of plaintiff, who was killed by police officers of the City of St. Louis on August 5, 1935. There was a judgment for plaintiff in the justice of the peace court from which defendant appealed to the Circuit Court of said City, where it was tried before the court and a jury, resulting in a verdict and judgment in favor of plaintiff against defendant in the sum of $740, the face amount of the policies, and interest. Defendant has duly brought the case to this court by appeal.

One of the policies is dated May 10, 1909, and is alleged to have been in full benefit after six years for the sum of $180. Another policy is dated November 29, 1915, and is for the sum of $150. The third policy is dated April 8, 1935, and is for the sum of $410. The policies provide that the above-named amounts will be paid by defendant upon the death of the insured. The first two above-mentioned policies contain no provision for accidental benefits, but the third policy mentioned, introduced as plaintiff's Exhibit 3, contains a provision for an accidental death benefit, and it was admitted that, effective January 1, 1929, the other two policies, plaintiff's Exhibits 1 and 2, are deemed to have the same provisions for benefits; and that the provision for accidental death benefits common to all three of the policies provides that, upon receipt of due proof that the insured, after attaining the age of fifteen and prior to attaining age seventy, "has sustained, * * * bodily injuries, solely through external, violent and accidental means, resulting, directly and independently of all other causes, in the death of the insured within ninety days from the date of such bodily injuries and while this Policy is in full force and effect * * *, the Company will pay, in addition to any other sums due under this Policy, and subject to the provisions of this Policy, an Accidental Death Benefit equal to the amount of insurance stipulated in the Schedule * * *."

Defendant contends that the trial court erred in refusing to sustain its demurrer to the evidence which it offered at the close of the entire case because the prima facie case of plaintiff was based on a presumption which was overcome by defendant's evidence, and because the record overwhelmingly shows that the insured was the aggressor at the time he was killed; that he was resisting police officers; that he was leading a life of crime; and that it would be against public policy to permit recovery under such circumstances. Defendant's contention necessitates a review of the evidence.

Plaintiff testified that Clarence Henry, the deceased insured, was her son by a former marriage; that he died on August 5, 1935, when he was twenty-nine years old; that he was shot and died instantly; that plaintiff was not present, but saw the body when she went down to the morgue about 1 a. m. August 6, 1935. Plaintiff identified plaintiff's Exhibits 1, 2, and 3 as the policies of insurance issued by the defendant company upon the life of her son, which plaintiff had in her possession. She admitted that the single indemnities, or death benefits for natural death of her son, had been paid to her.

At the close of plaintiff's evidence, defendant requested the court to direct a verdict in its favor, which the court refused to do, after which defendant produced Mrs. Nell Jones as a witness in its behalf, who testified that during 1935 she was operating a drug store at 4887 Natural Bridge Road in the City of St. Louis; that she was held up on August 1, 1935; that police officers, including Detective Sergeant McGuire, came and talked to her about the holdup. The witness then identified defendant's Exhibit D as a photograph of the deceased Clarence Henry, and stated that she first saw that picture on Saturday morning, August 3rd, after she was held up on Thursday evening at the store; that the detectives brought the picture in and she looked at it and identified it as the picture of the man who came in and held her up; that the police officers had a number of pictures with them, and asked her to look them over, which she did and picked out defendant's Exhibit D, the picture of Clarence Henry; that, on August 6th, she was notified by the Police Department to go to the morgue to identify a body; that she went to the morgue that morning and saw the body of the same young man that held her up and the same as the picture, Exhibit D. On cross-examination the witness testified that she was in the store at the time of the holdup and with her at the time were the relief clerk, the boy that did the delivery work, and two customers; that she was standing right in the middle of the floor when Clarence Henry entered and said, "Stay where you are", and that he was all alone.

Kenneth P. McGuire, a detective sergeant of the Police Department of the City of St. Louis, testified that defendant's Exhibit D was a photograph of Clarence Henry and that it was a part of the Police Department files; that he took the picture out to Mrs. Jones on Saturday morning, August 3, 1935, with a number of other photographs connected with various holdups; that among the holdups was that of Mrs. Jones, who was one of the victims; that he knew at the time whose photograph it was, having obtained it from the Bertillon Room, Bureau of Records, in the Police Department; that on the evening of August 5th he had information that Clarence Henry was living at 25th and North Market Streets, on the third floor; that the witness went there in company with Detective Lieutenant Hunt, Lieutenant Murphy, and Detective Harberding; that he went there to arrest Clarence Henry on charges of felonies; that they finally located the apartment of Clarence Henry on the third floor in the south apartment; that they knocked on the door, got a response from a woman's voice who said that Henry lived there and admitted them after two or three minutes; that it was a three-room apartment; that he and the other police officers entered the kitchen, with Lieut. Murphy and Lieut. Hunt in advance, followed by the witness, after whom came Detective Harberding; that Lieut. Hunt had a flashlight and it showed Clarence Henry standing in the doorway between the front room and the bedroom, one room away from the police officers; that he was stark naked, and had one hand behind his back; that he was immediately recognized as the man the police officers were looking for, and was told he was under arrest; that Henry came forward and sat down on a bed, and as he did so he pulled his hand down "and extracted a .32 caliber automatic revolver from under the pillow"; that Lieut. Hunt said, "No, you don't", and Henry answered, "Yes, I will. You'll never take me alive"; that Lieut. Hunt rushed at Henry and was aided by Lieut. Murphy; that Hunt and Murphy scrambled with Henry and they went to the floor; that the flashlight dropped and at this time there was a shot fired and Hunt and Murphy were both wrestling with the insured, and Hunt called for someone to come in and "get him"; that finally the witness crawled in and shot Henry; that Henry was not dressed but was stark naked and was very slimy and perspiring; that just about the time Lieut. Hunt grappled with Henry and then went to the floor, a shot was fired and they didn't know whether Lieut. Hunt or Henry was wounded, but found out that Hunt had thrown his arm in such a way that Henry shot himself in the leg; that it all happened very fast at the time; that Henry said, "No, you won't take me." The witness further testified that he shot Henry because Lieut. Hunt and Murphy said to "get him", and it was up to the witness to stop him from shooting them.

On cross-examination Officer McGuire testified that he shot Henry twice; that he couldn't give Henry's exact weight, but that he was about 135 pounds and a little medium-sized man; that when he shot Henry they were all on the floor four or five feet away from the bed scrambling and wrestling. Officer McGuire further testified on redirect examination that all four of the police officers were on the floor trying to subdue Henry; that Henry still had a gun, was struggling and swearing and threatening to kill all the officers right at the time that witness shot Henry; that Henry was calling the police officers names and threatening to shoot them, to "kill us coppers"; that Henry was trying to extricate himself from Hunt and Murphy, and they were trying to get Henry's revolver from him but were unable to do so; that Henry succeeded in firing one shot; that he was still calling the officers names and swearing at them and almost got away from them because he was very wet with perspiration and it was becoming hard to hold him. On recross-examination the witness testified that the cursing was in a very loud voice; and that there was quite a little excitement there; that the second shot the witness fired he thought was through the heart — one...