Zimmerman v. Southern Surety Co.

• Decision Date: 02 May 1922
• Docket Number: No. 17166.,17166.
• Parties: ZIMMERMAN v. SOUTHERN SURETY CO.
• Court: Missouri Court of Appeals

241 S.W. 95

ZIMMERMAN v. SOUTHERN SURETY CO.

No. 17166.

St. Louis Court of Appeals. Missouri.

May 2, 1922.

Appeal from St. Louis Circuit Court;:Karl Kimmel, Judge.

"Not to be officially published."

Action by Sadie Zimmerman against the Southern Surety Company, to recover on a policy of accident insurance. Judgment for plaintiff, and defendant appeals. Reversed and remanded, with directions to enter judgment for plaintiff for the amount of the policy, and interest from 90 days after the death of insured, if plaintiff will remit from the judgment the excess interest and the attorney's fee; otherwise, remanded for new trial.

Clarence T. Case, Victor J. Miller, and David W. Voyles, all of St. Louis, for appellant.

Frumberg & Russell, of St. Louis, for respondent.

BIGGS, C.

This action based on a policy of accident insurance issued by defendant on the life of Nathan Zimmerman, in which plaintiff was named as beneficiary, resulted in a judgment for plaintiff for the face of the policy, plus interest, and an attorney's fee of $150 assessed by the jury as a penalty for vexatious refusal to pay, making a total judgment of $780.70, from which defendant appeals.

The petition charges that Nathan Zimmerman, the insured, on April 2, 1919, came to his death from the effects resulting exclusively of all other causes from bodily injury sustained during the life of the policy, and while the same was in full force and effect, and solely through external, violent, accidental, and unintentional means, to wit, by means of a certain gunshot wound unintentionally inflicted upon him by one Fred Fiedler.

The answer admits that the plaintiff was the wife and beneficiary of Nathan Zimmerman, who died on April 2, 1919; that the policy was issued on the 30th of April, 1917; that the contract was substantially performed on the part of said Nathan Zimmerman; and that plaintiff more than 60 days before the institution of the suit furnished to the defendant due proof of the death of said Zimmerman. The answer further admits that Zimmerman came to his death on April 2, 1919, from the effects resulting exclusively of all other causes from bodily injury sustained during the life of the policy, and while the same was in full force; that said bodily injury was the result of a gunshot wound intentionally inflicted by Fred Fiedler.

The policy contained a stipulation on the part of the defendant to pay the amount agreed In the event of the death of Nathan Zimmerman caused solely through external, violent, and accidental means, subject to the conditions, limitations, and exclusions contained in the subsequent provisions of the policy, one of which was that the policy did not Cover injuries sustained by reason of the intentional act of any person.

The mooted question of fact in the case was whether or not the act of Fiedler in shooting the insured was intentional or unintentional. If unintentional, it was accidental within the meaning of the policy, and the defendant would be liable. On the other hand, if the act of Fiedler was intentionally done, the defendant would be absolved from liability under the express provisions of the contract.

Defendant asserts that the court should have directed a verdict in its favor, because of a lack of testimony tending to show that the shooting of Zimmerman was unintentional. This contention necessitates a statement of the material facts.

It was conceded that on April 2, 1919, Zimmerman was shot and killed by Fiedler in a bakery shop known as the Real Loaf Bakery, situated at Thirteenth and Biddle streets, in the city of St. Louis, where Zimmerman was employed as manager, and where Fiedler had previously been employed as a workman, but who had voluntarily given up his employment about a month previous. On said April 2d there were employed in the bakery, besides Zimmerman, five other men, including one Petit and one Tepper. At about 5:30 or 6 o'clock of the day in question Fiedler went to the bakery, and before entering spoke to one Victor Zimmerman, a brother of the insured, who was outside of the bakery, and there attempted to engage him in conversation. Victor Zimmerman testified that at this time Fiedler was drunk. Fiedler then proceeded into the bakery, and there greeted the deceased, Zimmerman, and two others there employed in the front part of the establishment. He then passed from this room through a gangway, and in doing so brushed against or nudged one Joachimsthaler, who was a foreman of the establishment. Fiedler then went into the other part of the bakery, and met and spoke to other workmen in a friendly manner, and then went back into the front room, where he engaged in conversation with Nathan Zimmerman and others, there being no indication, as far as the evidence discloses, of any quarreling or disturbance of any kind. It appeared that one witntss testified that Fiedler said "I will show you," and immediately drew a revolver and shot Zimmerman, killing him instantly. He then fired at Joachimsthaler, the foreman, but missed him, and then turned his revolver on two other employés, Petit and Tepper, killing both of them. There was nothing to indicate that there was any quarrelling or ill feeling between Fiedler and Zimmerman and Tepper, while it appeared that the relations between Fiedler and Petit were intimate and friendly, and that they had been friends from boyhood.

Shortly thereafter Fiedler appeared at a police station in the neighborhood, and informed the officers that he had killed three men at Thirteenth and Biddle streets. It appeared not only from the testimony of the witnesses who had seen Fiedler at the time, but also from the testimony of the police officers, that Fiedler was intoxicated. Another witness attempted to interview Fiedler at the police station about 7 o'clock. This witness had known Fiedler for a number of years, and attempted to engage him in conversation, but was unable to do so. He testified that Fiedler was then intoxicated, and smelt strongly of whisky. It appeared that Fiedler was ordinarily a man of good habits, and was a steady...