Opinion
March 6, 1939.
1. — Certiorari. On redocketing and rehearing of appeal in action on double indemnity policy, where first opinion of Court of Appeals was quashed by Supreme Court on certiorari, Court of Appeal will consider contention which was not before Supreme Court on certiorari, but which was properly before Court of Appeals on second review.
2. — Insurance — Accidental Death. Killing of insured under double indemnity policy, by an officer at scene of burglary, after insured had abandoned burglary and was passive, was a part of res gestae of burglary in which insured and companion had engaged, so that insured was killed in commission of a crime and as a result thereof.
3. — Insurance. As applied to double indemnity insurance contracts, an injury not anticipated, and not naturally to be expected as a probable result by the insured, though intentionally inflicted by another, is an accidental injury within the terms of the policy.
4. — Insurance — "Accidental Means." A voluntary act of a third person intended by such third person to result in the injury or death of an insured under policy provisions like those here involved is, as a matter of law, the accidental means of such death or injury, unless as a cause it was one of a sequence of causes set in motion by voluntary conduct of the insured under such circumstances that such voluntary conduct of the insured be technically the proximate cause of such injury or death. Where voluntary conduct of the insured is established as the proximate cause of the injury or death, the further fact is at the same time established that the willful act of the third person was not an accidental means, or at least not solely an accidental means by which the injury or death resulted.
5. — Insurance. In action on double indemnity provision of life policy for alleged accidental death of insured who was killed by an officer at scene of attempted burglary, refusal of instructions permitting recovery even though insured was killed during commission of burglary or other crime, held erroneous as omitting material issue as to whether insured's voluntary act was technically the proximate cause of his death.
6. — Insurance. In suit on double indemnity policy, question of whether or not the voluntary act of insured was proximate cause of death was for jury.
7. — Insurance. In suit on double indemnity provision of life policy, instruction that if death of insured was direct result of external, violent and accidental means, verdict should be for plaintiffs and, if the killing of insured, as to him, was unforeseen, unexpected and unusual and did not take place according to the usual course of events and was not the probable and natural consequence of his act and conduct, then his death as a direct result of such shooting was the direct result of "accidental means," held proper.
8. — Insurance. Where killing of insured under double indemnity policy, by an officer, was a part of res gestae of a burglary into which insured voluntarily engaged, insurer was not liable under double indemnity provision of policy.
Appeal from Randolph Circuit Court. — Hon. Aubrey R. Hammitt, Judge.
AFFIRMED.
Hunter Chamier and Jerry M. Jeffries for appellants.
(1) In a suit on a life and accident policy, where the insured is dead, and where a beneficiary had paid all the premiums to the agent with whom the insurance was taken out, and the company sends the same agent with a check to pay all or part of the amount due, the company is bound by any declarations or statements made by the agent at the time he delivers the check, because such declarations would be within the scope of his authority. To exclude evidence of such statements or declarations is error. Particularly where the objections were on the grounds that the agent did not have authority to bind the company. Roberts v. Wabash R. Co., 153 Mo. App. 638; Roberts v. Wabash R. Co., 134 S.W. 89; Rayle Mining Co. v. Fid. Cas. Co., 142 S.W. 438; Rayle Mining Co. v. Fid. Cas. Co., 161 Mo. App. 185; Plummer v. Knight, 137 S.W. 1019; Plummer v. Knight, 156 Mo. App. 321. (2) Where no issue is made by the pleadings that the plaintiff had failed to furnish death proofs; papers purporting to be death proofs are not competent evidence. Defendant's Exhibit A being a paper signed by Doctor Maddox and plaintiff, Wilma Eagan, and no part of same should have been admitted as evidence in the case. Hester v. Fid. Cas. Co., 69 Mo. 193; Hilburn v. Phoenix Ins. Co., 140 Mo. App. 355; Bath v. Met. L. Ins. Co., 152 Mo. App. 87. (3) The insurance contract must be interpreted as written. If doubts exist in the construction of it, those doubts should be resolved in favor of the beneficiary and against the company. Refused Instructions A1, A2, B, C, D, E, G and I were proper under the policy and evidence in the case and it was error to refuse them. Lovelace v. Travelers Prot. Ins. Co., 124 Mo. 104; Collins v. Fid. Cas. Co., 63 Mo. App. 255; Hester v. Fid. Cas. Co., 69 Mo. App. 193; Strother v. Business Men's Assn., 188 S.W. 314; Gilman v. N.Y. Life Ins. Co. (Ark.), 79 S.W.2d 78; Gilman v. N.Y. Life Ins. Co., 188 Mo. App. 457; Meadows v. Pac. Mut. Life, 129 Mo. 76; Hunt v. U.S. Acc. Assn., 10 Ann. Cas. 499; Banta v. Casualty Co., 134 Mo. App. 226. (4) If one starts a fight or goes into an encounter and then retreats as far as possible and is killed, as to him, the death is accidental. Refused Instruction F was proper and should have been given. Strother v. Bus. Men's Assn., 188 S.W. 314; Strother v. Bus. Men's Assn., 198 Mo. App. 633; Brink v. Purnell et al., 22 Ann. Cas. 829-831; Brink v. Purnell et al., 88 S.W. 451; Brink v. Purnell et al., 280 S.W. 30-36; Brown v. Supreme L.K. of P., 83 Mo. App. 637; State v. Webb, 216 Mo. 388; State v. Webb, 88 S.W.2d 425; Collins v. Fid. Cas. Co., 63 Mo. App. 253. (5) The intent of the officer who did the shooting had nothing to do with this case. At least the plaintiff is not bound by his intent. Under the instructions given, the jury could have and did consider that because Mize intended to shoot Eagan that the shooting was intentional, and not accidental. Had Instruction H refused, been given, the jury would have been told that the intent of Mize had nothing to do with it and they could and would have found for the plaintiffs. Strauther v. Bus. Men's Assn., 188 S.W. 314; Hutcrafts Ex. v. Ins. Co., 87 Ky. 300; Collins v. Fed. Cas. Co., 63 Mo. App. 253; Enk v. Fid. Cas. Co., 253 S.W. 1029, l.c. 1036; Lovelace v. Trav. Prot. Ins. Co., 126 Mo. l.c. 116. (6) Instructions 3B and 4 given, we consider them together. They are not proper instructions if those refused were proper. McKennon v. Natl. Cas. Co., 216 Mo. App. 507; McKennon v. Natl. Cas. Co., 270 S.W. 707; Empire L. Ins. Co. v. Johnson, 40 Ann. Cas. 268; Nat. L. and Acc. Ins. Co. v. Jones, 86 S.W.2d 139; American Nat. Ins. Co. v. Garrison (Tex.), 9 S.W.2d 534; State v. Gooch, 105 Mo. 392. (7) The verdict and judgment is against the evidence and the weight of the evidence. Hester v. Fid. Cas. Co., 69 Mo. App. 186; Banton v. Casualty Co., 134 Mo. App. 226; McDonald v. Triple Alliance, 57 Mo. App. 87; Lovelace v. Travelers Prot. Ins. Co., 126 Mo. 104; Jamison v. Continental Casualty Co., 110 Mo. App. 443; Moon v. Order United Com. Travelers, 40 Ann. Cas. 231. (8) The court erred in giving Instruction 4, because inconsistent. To say that one intends the natural and probable result of his acts and at the same time say that he did not anticipate such result is a contradiction. If such result was not anticipated by the insured, it was an accident as to the insurer within the terms of the policy. This instruction also assumed facts, the determination of which was for the jury. McKennon v. Natl. Cas. Co., 216 Mo. App. 507; McKennon v. Natl. Cas. Co., 270 S.W. 707; Empire L. Ins. Co. v. Johnson, 40 Ann. Cas. 268; Nat. L. and Acc. Ins. Co. v. Jones, 86 S.W.2d 139; American Nat. Ins. Co. v. Garrison (Tex.), 9 S.W.2d 534; State v. Gooch, 105 Mo. 392; Strother v. Business Men's Accident Assn. of America, 193 Mo. App. 718, 188 S.W. 314; Lovelace v. Travelers Protective Assn. of America, 126 Mo. 104, 28 S.W. 877. (9) The court committed error in refusing Instruction H, because it stated a correct principle of law as applied to the facts in the case, and, therefore, should have been given. Under policies such as that in question, anything not anticipated and not naturally to be expected by the insured as a probable result, though intentionally inflicted by another, is an accidental injury as to him within the terms of the policy. An act which is unforeseen and unexpected by the assured or which does not take place according to the usual course of things is accidental. Strother v. Business Men's Accident Assn. of America, 193 Mo. App. 718, 188 S.W. 314; Lovelace v. Travelers Protective Assn. of America, 126 Mo. 104, 28 S.W. 877; Phelan v. Travelers Ins. Co., 38 Mo. App. 640; Collins v. Fidelity and Cas. Co., 63 Mo. App. 253. (10) (a) Instruction A2, offered and refused, told the jury that if insured was killed from a pistol shot, the law presumed his death was by violent, external and accidental means. This was a proper instruction. It is declaratory of a correct principle of law, as outlined in the following decisions: Lovelace v. Travelers Protective Ins. Co., 126 Mo. 104; Strother v. Business Men's Accident Assn., 198 Mo. 718. (b) Instruction B, offered and refused, properly defined accident as applied to this case. The fact that the instruction had coupled with it a further proposition of voluntary assumed danger by insured was correct, because the defense was not that insured had voluntarily assumed a place of danger. There was nothing in the policy to relieve the defendant for such conduct and such was no defense. Collins v. Fidelity and Cas. Co., 63 Mo. App. 253; Strother v. Business Men's Accident Assn. of America, 198 Mo. App. 718. (c) Instruction C, offered and refused, was a proper instruction. By the contract the company agreed to pay if death was by violent, external and accidental means without regard to what he was doing at the time. McDonald v. Triple Alliance, 57 Mo. App. 87; Collins v. Fidelity and Cas. Co., 63 Mo. App. 253. (d) Instruction D, offered and refused, was a proper instruction. It told the jury that even though the insured was violating the law at the time he was killed, if his death was from violent, external and accidental means, the defendant was liable. The policy limited the liability only in event death came from accidental means, while engaged in the military service in times of war or in aviation as a passenger or otherwise. Strother v. Business Men's Accident Assn. of America, 198 Mo. App. 718; American National Ins. Co. v. Garrison, 97 S.W.2d 534. (e) Instruction E, offered and refused, was a proper instruction. It told the jury that it was immaterial how careless or negligent the insured might have been at the time he was killed. The policy simply says that if the insured received his death by violent, external and accidental means the company will pay. Nowhere does it say the insured shall do this or that, or not do this or that. Carelessness on his part is no defense. Lovelace v. Travelers Protective Co., 126 Mo. 104; Phelan v. Travelers Ins. Co., 38 Mo. App. 450; Collins v. Fidelity and Cas. Co., 63 Mo. 253. (f) Instruction G, offered and refused, was a proper instruction. It told the jury that if, while both parties were engaged in the alleged burglary, officer Mize appeared, and both or either knew the officer was armed, and Evans began to shoot at the officer, and they knew the officer would return the fire, and he did return the fire, the shooting of insured was accidental as to Eagan, unless the evidence showed that Eagan encouraged Evans to shoot at the officer, and that the mere presence of insured at the time of the attempted burglary or shooting at Mize would not justify a conclusion that insured encouraged Evans to shoot at the officer. This was a proper instruction under the evidence in this case. State v. May, 142 Mo. l.c. 153; State v. Croft, 338 Mo. 831, l.c. 841. (g) Instruction I, offered and refused, was a proper instruction. Plaintiff was entitled to have the jury told that what the insured was doing at the time of his death, if it was not anticipated by him, and was not naturally to be expected by him as a probable result of what he was doing, though the killing was intentional on the part of the officer, it was accidental as to insured under the terms of the policy. Lovelace v. Travelers Protective Ins. Co., 126 Mo. 104.
Hulen Walden and Ralph M. Jones for respondent.
Michaels, Blackmar, Newkirk, Eager Swanson and Ralph W. Hyatt of Counsel.
(1) Error cannot be based on exclusion of testimony absent any offer or proof as to what the testimony would be. Byam v. K.C. Pub. Serv. Co., 328 Mo. 813, 41 S.W.2d 945, 952; Schuetter v. Enterprise Commission Corp. (Mo. App.), 34 S.W.2d 976-8. (2) Proofs of loss are not only admissible but conclusive unless contradicted or explained. Farage v. Jno. Hancock (Mo. App.), 81 S.W.2d 344-6; State ex rel. v. Trimble (Mo.), 259 S.W. 1052; Kirk v. Metropolitan, 81 S.W.2d 333. (3) The exceptions to the accidental death provisions do not change the issue — was the death caused by accidental means? The evidence being undisputed a verdict for defendant should have been directed. National Life Acc. Ins. Co. v. Jones, 86 S.W.2d 139; DeMello v. Jno. Hancock, 183 N.E. 255; Manno v. Met., 249 N.Y.S. 1; Lovelace v. Travelers' Protective Assn., 28 S.W. 877, 126 Mo. 104; McKeon v. National Casualty Company, 216 Mo. App. 507, 270 S.W. 707; State v. Linders, 299 Mo. 671, 253 S.W. 716-721; State v. Vaughan et al., 200 Mo. 1; McGuire v. Metropolitan Life Insurance Co. (Tenn.), 46 S.W.2d 53-54; Piotrowski v. Prudential, 252 N.Y.S. 313, 314. (4) There was no error in the court's instructions and the refused instructions were erroneous, misleading and superfluous.
This is an action based upon the double indemnity clause of an insurance policy. One Joe Eagan held an insurance policy, issued by defendant, providing for payment of $413 upon insured's death and the further sum of $413 (double indemnity) if the insured's death resulted from bodily injuries solely through "external, violent and accidental means." (Italics ours.) The policy was in force when Eagan died. Defendant 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 $413 for accidental death.
Eagan was shot and killed by an officer at the scene of an attempted burglary in which he and an accomplice had been engaged.
A trial was had before a jury, the jury verdict and judgment was for defendant, and plaintiffs appealed. The case was argued and submitted to this court at its March Term, 1937, and this court reversed and remanded same. Upon certiorari, cause went to the Supreme Court and the opinion of this court was quashed. [See 119 S.W.2d 309.]
On motion of plaintiffs, wherein it was claimed that the opinion of the Supreme Court had not determined as to all of the issues, this cause was redocketed and rehearing had at the October Term, 1938.
The determining factor in this case rests upon the determination of whether or not the death of Eagan was caused by having sustained bodily injuries solely through external, violent and accidental means.
There is evidence shown from which it may be inferred that Eagan, when he was shot, had left the exact place of the burglarly and was passive at the time he was shot. However, it is shown that his associate at the time was making manifest resistance to arrest. In passing upon the aforesaid situation, this court in its first review made a distinction to the effect that although Eagan would have been guilty of the overt act of his associate in assault upon the arresting officer, still as to injury to Eagan himself, if he had abandoned, desisted and was passive and unresisting at the time, his death might come under cover provisions of the policy. In reaching this conclusion, consideration was given to paragraph No. 2 of the provisions of the policy, under head of "Exceptions."
Said paragraph being as follows:
"No accidental death benefits will be paid if the death of the insured resulted from suicide or from having been engaged in submarine or diving operations, or in aviation as a passenger or otherwise, or from military or naval service in time of war."
It will be noted that a frequent exception as to being killed or injured while engaged in commission of crime is not found in the policy.
As to the above conclusion by this court, the Supreme Court held that we were in conflict with controlling opinion of the Supreme Court and base same on a discussion of State v. Adams, 339 Mo. 926, 98 S.W.2d 632, 637. In this case, Adams and two accomplices were engaged in burglarizing a gasoline filling station. Being apprehended, the trio fled and were chased by Officers Green and Brown. Several hundred feet from the filling station, one of the trio shot and killed Officer Green. Adams, in the trial of his case, contended that he had abandoned the burglary. Adams was held on a first degree murder charge, on the principle that escape was continuation of the offense and within the res gestae.
This case was presented to us on our former review upon the theory as above stated, to-wit: That Eagan was shot and killed after he had desisted and abandoned.
In this rehearing the appellants have filed a brief wherein we are called upon to review as to instructions given and refused in the trial in the circuit court. In our first review, we refused to review as to instructions for the reason that same were deficient as to assignment of reasons. In the new brief our rules have been complied with.
The above explains the following statement in the opinion of the Supreme Court filed with its mandate, to-wit: "It seems to be conceeded that if Eagan was killed in the commission of a felony there can be no recovery as for accidental death."
As based upon the former opinion of this court, with consideration of instructions not gone into, the above statement presents the exact situation as considered by the Supreme Court on certiorari.
In reviewing this case, from the standpoint as presented in the appellants' brief filed upon rehearing, we must give consideration of a contention that was not before the Supreme Court, to-wit: The appellants present instructions, which were refused, that permit recovery regardless of the question of whether or not Eagan was killed in the commission of a felony.
Instructions C and D, offered and refused, best present the new question to be determined. The instructions are as follows:
"C"
"The court instructs the jury that so far as this case is concerned the policy of insurance sued on provides that if the said Joe Eagan should meet his death by violent, external and accidental means the defendant will pay double indemnity. The court therefore instructs you that it is immaterial what the said Eagan was doing or engaged in at the time he received the injury which resulted in his death. If you find the injury was violent, external and accidental your verdict should be for the plaintiffs.
"D"
"The court instructs the jury that even though you find the insured, Joe Eagan, was engaged in the violation of the law, committing a burglary or other crime and while so engaged from violent, external and accidental means met his death, the fact that he was so engaged is no defense to plaintiffs' action, and your verdict on that account should be for the plaintiffs."
From a careful reading of the opinion State ex rel. Prudential Ins. Co. v. Shain, supra, we conclude that to follow same we must hold that the evidence in the case at bar is clearly to the effect that Eagan's killing was a part of the res gestae of the burglary that he and his companion were engaged in when the officers came upon the scene. In other words, Eagan met his death in the commission of a crime and as a result thereof.
The payment of a double indemnity provided for in the insurance contract was predicated on death resulting from accident. As applied to insurance contracts, ELLISON, J., of this court in Collins v. Fidelity Casuality Co., 63 Mo. App. 256-257, says:
"An injury not anticipated and not naturally to be expected as a probable result, by the insured, though intentionally inflicted by another is an accidental injury within the terms of the policy."
The above is supported by citations from other States, and Lovelace v. Ins. Co., 126 Mo. 104. The Collins and Lovelace cases affirmatively set forth conditions under which such means would be accidental. For the purpose of review we accept these cases as our guide and proceed to give consideration of the fact as to whether or not the death of Eagan, under the facts in evidence in this case, comes within the meaning of "accident" as above defined.
The case of Lovelace v. Ins. Co., we find is cited with approval by the Court of Civil Appeals of Texas in American National Ins. Co. v. Garrison, 97 S.W.2d 534. We are impressed with the reasoning of the Texas opinion, supra, and quote with approval from paragraph No. 5, l.c. 536, as follows:
"The rules and principles of law declared in the Bryant, Francis, and other cases are only applicable to the instant case in considering whether voluntary conduct of the insured was conclusively, as a matter of law, shown to have been the means by which the death of the insured resulted. From a reading of the authorities and consideration of the question we are of the opinion that a voluntary act of a third person intended by such third person to result in the injury or death of an insured under policy provisions like those here involved is, as a matter of law, the accidental means of such death or injury, unless as a cause it was one of a sequence of causes set in motion by voluntary conduct of the insured under such circumstances that such voluntary conduct of the insured be technically the proximate cause of such injury or death. Where voluntary conduct of the insured is established as the proximate cause of the injury or death, the further fact is at the same time established that the willful act of the third person was not an accidental means, or at least not solely an accidental means by which the injury or death resulted."
We conclude that instructions C and D and other instructions refused were in error in that same leaves out the element of consideration as to whether or not the voluntary act of Eagan be technically the proximate cause of his death. In other words, we hold that the question of whether or not Eagan's killing was a part of the res gestae of the burglary is material to the issue.
In the consideration of this cause, we are not called upon to determine the question as to whether or not Eagan's voluntary conduct was, as a matter of law, the proximate cause of his death. Such question was given to the jury as an issue of fact and, we conclude, properly so.
The trial court gave upon its own motion Instruction No. 2-B as follows:
"The court instructs the jury that if you believe from the evidence and all the facts and circumstances detailed in evidence that the death of the insured, Joe Eagan, was the direct result of external, violent and accidental means, then your verdict should be for the plaintiffs in this case. And in this connection you are instructed that if you believe and find from the evidence that the shooting of said Joe Eagan, as to him, was unforseen, unexpected and unusual and did not take place according to the usual course of events, and was not the natural and probable consequences of his act and conduct, then his death as a direct result of such shooting, if you find it was, was the direct result of accidental means."
The above instruction, we conclude, presented the determining issue of fact in a most favorable manner for plaintiffs. The jury having spoken, it is not within our province to interfere.
We have carefully reviewed the record and briefs filed herein and, based upon our conclusion that the killing of Eagan was a part of the res gestae of a burglary into which he voluntarily engaged, we conclude that no prejudicial error is shown by the record. Judgment affirmed. All concur.