Reynolds v. Maryland Casualty Company

• Decision Date: 29 March 1918
• Parties: GEORGE V. REYNOLDS, Administrator of Estate of JAMES W. REYNOLDS, v. MARYLAND CASUALTY COMPANY, Appellant
• Court: Missouri Supreme Court

201 S.W. 1128

274 Mo. 83

GEORGE V. REYNOLDS, Administrator of Estate of JAMES W. REYNOLDS, v. MARYLAND CASUALTY COMPANY, Appellant

Supreme Court of Missouri

March 29, 1918

Appeal from Audrain Circuit Court. -- Hon. James D. Barnett, Judge.

Affirmed.

Holland Rutledge & Lashly for appellant.

(1) The court erred in refusing the demurrer to the evidence asked by defendant at the close of all the testimony, because there was no evidence upon which to base a verdict that the death was accidental. The law is well settled that inferences may not be based upon inferences, or presumptions upon presumptions. And the verdict in this case could not have been based upon anything but a series of presumptions. 16 Cyc. 1051; United States v. Ross, 92 U.S. 281; Bigelow v. Met. St. Ry., 48 Mo.App. 372; Moberly v. Railway, 98 Mo. 183; Rapp v. Railway, 106 Mo. 428; Schepeis v. Railroad, 126 Mo. 665; Myers v. Kansas City, 108 Mo. 487. Even if there were a scintilla of evidence upon which to base the verdict which we deny, this would not be sufficient, as a demurrer to the evidence should be given unless there is substantial testimony upon which a verdict may be based. Williams v Railway, 257 Mo. 87. (2) The verdict is against the evidence and the weight of the evidence, and so clearly so that it is obviously based merely upon sympathy and prejudice. (3) The court erred in giving Instruction 1 at the instance of plaintiff, in that said instruction gives the jury a roving commission to find that the death was accidental, without requiring a finding of any facts which it is claimed constituted accident; and also in that it ignores a substantial defense, to-wit, that of suicide, sane or insane. The instruction to be proper in form should have required a finding of facts which would constitute an accident within the meaning of the policy, and should have told the jury that if the death was caused by self-inflicted wounds while non compos, plaintiff would not be entitled to recover even though said death were accidental. Allen v. Transit Co., 183 Mo. 411, 435; Mulderig v. Railroad, 116 Mo.App. 655; Sommers v. Transit Co., 108 Mo.App. 319; Miller v. United Railways, 155 Mo.App. 528; Delo v. Mining Co., 160 Mo.App. 38; Nagel v. Railroad Co., 169 Mo.App. 284. (4) The court erred in refusing to give instruction asked by defendant to the effect that in arriving at a verdict the jury could not resort to mere guess, conjecture or stipulation. This instruction directly stated the law, and should have been given.

Watts, Gentry & Lee and Fauntleroy, Cullen & Hay for respondent.

(1) The court should not have sustained the demurrer to the evidence. It is earnestly insisted that there is no evidence whatever to sustain the theory of accident, but that all the evidence shows conclusively -- so conclusively that two reasonable minds could not differ on the proposition -- that James W. Reynolds committed suicide. No one saw the shot fired. The evidence is purely circumstantial. "When circumstantial evidence only is relied on, the defense fails unless the circumstances exclude with reasonable certainty any hypothesis of death by accident or by the act of another." Bacon on Benefit Societies, sec. 336a. This rule is recognized in all the well-considered cases on the subject, in both State and Federal courts, and by all textwriters treating it, throughout this country, as is also the rule that the presumption of law is against suicide. Laessig v. Protective Assn., 169 Mo. 272; Insurance Co. v. McConkey, 127 U.S. 661; Wilkinson v. Ins. Co., 240 Ill. 205; Ins. Co. v. Crayton, 209 Ill. 550; Shotliff v. Modern Woodmen, 100 Mo.App. 138; Wigmore on Evidence, secs. 2510, 2540; Accident Co. v. Thornton, 100 F. 582; Washburn v. Benefit Assn., 10 N.Y.S. 365; Almond v. Modern Woodmen, 133 Mo.App. 382; Claver v. Woodmen of the World, 152 Mo.App. 154; Hunt v. Pyramids, 105 Mo.App. 41; Ins. Co. v. Hurt, 79 S.E. 401; Pagel v. Casualty Co., 148 N.W. 878; Heustis v. Ins. Co., 155 N.W. 643; Korig v. Indemnity Co., 102 Minn. 31; Waldon v. Life Assn., 131 N.W. 962; Assurance Co. v. Hebert, 37 Iowa 373; Cox v. Royal Tribe, 42 Ore. 365; Modern Woodmen v. Kincheloe, 91 N.E. 976; Ins. Co. v. Nitterhouse, 11 Ind.App. 155; Stephenson v. Life Assn., 108 Ia. 637; Ins. Co. v. Spaulding, 150 P. 494; Ross-Lewin v. Ins. Co., 78 P. 305; Benefit Assn. v. Sargent, 142 U.S. 691; Leman v. Ins. Co., 24 L. R. A. 589; Ins. Co. v. Millward, 68 L. R. A. 285; Boynton v. Assurance Co., 105 La. 202; Ins. Co. v. Kaiser, 74 S.W. 203; Ins. Co. v. Maddox, 127 S.W. 503; Ins. Co. v. Ford, 130 S.W. 769; Fidelity & Cas. Co. v. Egbert, 84 F. 410; Cochran v. Ins. Co. of N. Y., 79 F. 46; Krogh v. Modern Brotherhood, 141 N.W. 276. Is the inference of suicide the only inference that can be reasonably drawn from all the facts and circumstances shown in the evidence in the case at bar? It is well settled that, in passing upon a demurrer to the evidence, the court will consider only the evidence most favorable to plaintiff's side of the case, and if, thus considering the case, it is found that there is substantial evidence to uphold a verdict for the plaintiff, the appellate court will not reverse a judgment on the ground that a demurrer to the evidence should have been sustained. (2) If there was substantial evidence entitling the plaintiff to go to the jury, of course, the weight of the evidence was for the jury and the trial judge. Nephler v. Woodward, 200 Mo. 179. (3) Instruction I given at the instance of the plaintiff was correct in every respect. The only complaint as to that instruction is the suggestion by appellant that James W. Reynolds may have been non compos, and, while in that condition, may have intentionally fired the shot that killed him. To hold that the plaintiff's instruction should have submitted to the jury the question as to whether or not he was insane would be to hold that a question as to which there was no evidence, should be submitted in the instruction. There is no presumption of law that any man is insane in the absence of evidence tending to establish his insanity, but, on the contrary, all men are presumed to be sane until the contrary is shown. Chadwell v. Reed, 198 Mo. 379; Banking Co. v. Loomis, 140 Mo.App. 70. (4) There was no error in refusing the instruction asked. The most that can be said of the right of the court to give such instruction is that in its discretion the court can do so. The trial court having exercised its discretion against the giving of it, that discretion will not be interfered with on appeal. Stauffer v. Railroad, 243 Mo. 335.

BROWN, C. Railey, C., concurs. Graves, C. J., and Walker, Blair and Williams, JJ., concur; Bond, Faris and Woodson, JJ., dissent.

OPINION

In Banc.

BROWN C.

This is an action by the administrator of James W. Reynolds, deceased, upon an accident insurance policy issued by defendant and payable to the estate of the intestate.

The substance of the pleading is as follows:

The petition alleged in substance that plaintiff had been duly appointed the administrator of the estate of James W. Reynolds, deceased; that the defendant was a corporation organized under the laws of the State of Maryland and engaged in the business of insurance; that on the 27th day of November, 1909, the defendant issued and delivered to James W. Reynolds of Chicago, Illinois, a policy of accident insurance by the terms of which it agreed to pay the estate of said James W. Reynolds the sum of ten thousand dollars in case of death by bodily injuries effected directly, independently and exclusively of all other causes, through external, violent and accidental means; that said policy provided for the payment of an additional sum in case of renewal; that on account of two annual renewals an additional sum of one thousand dollars was payable, so that the total amount due on account of the alleged death of James W. Reynolds was eleven thousand dollars; that said James W. Reynolds paid all the premiums called for by said policy and performed all the duties incumbent upon him under said policy; that the death of said James W. Reynolds occurred on the 19th day of September, 1911, and resulted solely from bodily injuries effected directly, independently and exclusively of all other causes through external, violent and accidental means, to-wit: from a gunshot wound inflicted upon him on the day of his death; that defendant was duly notified of said death and furnished plaintiff blanks upon which to make formal proofs of said death, and plaintiff did furnish said proofs as required by said policy.

The answer of defendant contained a general denial and a plea that the policy sued upon, together with the renewal thereof, did expressly provide that suicide, sane or insane, was not covered thereby, and that the death of James W. Reynolds was suicidal within the meaning of said policy; that at the time said policy was issued and delivered to said James W. Reynolds, the latter was a citizen and resident of Chicago, Illinois, and that said policy and renewal was issued to and delivered to James W. Reynolds in said city of Chicago from the office of defendant in said city and by an agent of defendant in said city, as a part of defendant's business in said city; and that at the time said policy was so issued to said James W. Reynolds the latter represented that he was residing in said city of Chicago, and by the said policy and the said renewals said James W. Reynolds did warrant that such statement was true.

The reply of plaintiff was a general denial.

There was judgment for plaintiff for $ 11,780, the full amount claimed, from which this appeal is taken.

The evidence shows that James W. Reynolds was thirty-two years old when he died and had never been married. His father, Hon....