213 S.W. 45 (Mo. 1919), Brunswick v. Standard Accident Insurance Company

Citation:213 S.W. 45, 278 Mo. 154
Opinion Judge:FARIS, J.
Party Name:PAULINE BRUNSWICK, Appellant, v. STANDARD ACCIDENT INSURANCE COMPANY
Attorney:Emerson E. Schnepp, Otto F. Karle and Taylor & Mayer for appellant. Anderson, Gilbert & Hayden and M. U. Hayden for respondent.
Judge Panel:FARIS, J. Woodson, J., dissents; Bond, C. J., not sitting.
Case Date:May 16, 1919
Court:Supreme Court of Missouri
 
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213 S.W. 45 (Mo. 1919)

278 Mo. 154

PAULINE BRUNSWICK, Appellant,

v.

STANDARD ACCIDENT INSURANCE COMPANY

Supreme Court of Missouri

May 16, 1919

Appeal from St. Louis City Circuit Court. -- Hon. James E. Withrow, Judge.

Reversed and remanded.

Emerson E. Schnepp, Otto F. Karle and Taylor & Mayer for appellant.

(1) The verdict was for the wrong party and was against the evidence and against the law under the evidence. The uncontroverted evidence is that William Brunswick died from the effect of taking cyanide of potassium, a deadly poison. There is no evidence which even tends to show otherwise. He therefore died from taking cyanide of potassium either (a) intentionally, whether sane or insane. Knights Templar v. Jarman, 187 U.S. 200, or (b) unintentionally, or, in other words, accidentally. If unintentionally (accidentally), then the defendant is absolutely liable under the policy. Unintentionally, or accidentally, means without knowing that he was taking a deadly poison. Accident Insurance Co. v. Crandal, 120 U.S. 527. (2) Under a provision of the policy itself the defendant recognized suicide as an event upon the happening of which it would be liable under the policy. It attempted to go further and reduce its liability, in the event of suicide, to one-tenth of the principal sum prescribed by the policy to be paid. Under the statute it could not do this. Its own construction of the policy showed it to be liable in the event of suicide and, being so liable, it could not, by any provision thereof, cut down or diminish that liability. Keller v. Travelers Ins. Co., 58 Mo.App. 557; Whitfield v. Aetna Life Ins. Co., 205 U.S. 489. (3) Furthermore, the verdict is such as to be absolutely and beyond question against the evidence and the law under the evidence, and for the wrong party, because the evidence shows that William Brunswick's death was caused by his taking cyanide of potassium, a deadly poison. Hence there are but two alternatives: (a) It was taken without knowledge on his part that he was taking the poison, which would constitute an accident within the meaning of the policy; or (b) That he took it knowingly, which would constitute suicide. If the first alternative be true, then the defendant was liable beyond question for the full amount of the policy. If the second alternative (suicide) be true then (even conceding that the defendant might limit or cut down its liability on account of suicide) under the above-mentioned term of the policy, the defendant would be liable for $ 250. Hence, on the uncontroverted evidence, under the terms of the policy itself, there could be no general verdict for the defendant and the verdict should have been in favor of appellant either for the full principal sum (accident) or for $ 250 (suicide). (4) Instruction No. 2 given for respondent is erroneous in that there was no evidence to support it. Gregmoore Orchard Co. v. Gilmour, 159 Mo.App. 218; Wann v. Scullin, 210 Mo. 486. The evidence showed conclusively that Brunswick died from taking cyanide of potassium. Under the statute this constituted an accident within the meaning of the policy. Hence, there was no room for an instruction to the jury requiring it to find that Brunswick's act constituted an accident. Applegate v. Travelers Ins. Co., 153 Mo.App. 90; Harms v. Fidelity & Casualty Co., 172 Mo.App. 250; Whitfield v. Aetna Life Ins. Co., 205 U.S. 489; Logan v. Fidelity & Casualty Co., 146 Mo. 114. (b) Instruction No. 2 was erroneous, because said instruction is not the law. It told the jury that if deceased died because he took cyanide of potassium, yet there is no presumption in law that such act was accidental. This part of the instruction could have no effect other than to confuse and mislead the jury. (5) The presumption of law is against suicide, hence, that being the presumption, in the absence of evidence to the contrary, the question of suicide being excluded, there is but one alternative left and that is that the taking of poison was accidental. Richely v. Woodmen of the World, 163 Mo.App. 247; Newland v. Modern Woodmen, 169 Mo.App. 319; Norman v. Order of United Com. T., 163 Mo.App. 175; Voelker v. Hill-O'Meara Const. Co., 153 Mo.App. 1. (6) Even if it could be said that there was some evidence tending to show that Brunswick died because he intentionally took cyanide of potassium (suicide) yet, under the law, such intentional taking constituted an accident. Applegate v. Travelers Ins. Co., 153 Mo.App. 90; Harms v. Fidelity & Casualty Co., 172 Mo.App. 250; Whitfield v. Aetna Life Ins. Co., 205 U.S. 489; Logan v. Fidelity & Casualty Co., 146 Mo. 114; Knights Templar & Masons Life Indemnity Co. v. Jarman, 187 U.S. 197.

Anderson, Gilbert & Hayden and M. U. Hayden for respondent.

(1) If the record discloses that the evidence offered by appellant (plaintiff) wholly failed to establish that she is entitled to recover or entitled to have her case submitted to the jury at all, then, the verdict of the jury having been in favor of respondent (defendant), there can be no error in any instructions given at the instance of the respondent which can be held to be reversible error. Wagner v. Electric Company, 177 Mo. 60; Bradley v. Forbes Tea Company, 213 Mo. 320; Trainer v. Mining Co., 243 Mo. 371. (2) It is elementary that the burden is upon the plaintiff, in any lawsuit, to prove the allegations of his petition. If he fails to prove those allegations or if he prove another and different theory than that pleaded, he is not entitled to recover. Reed v. Bott, 100 Mo. 62; Schneider v. Patton, 175 Mo. 723; Roden v. Helm, 192 Mo. 94. (3) The appellant averred in her petition that "the insured, William Brunswick, died, his death resulting directly, exclusively and independently of all other causes, from accidental bodily injuries from and caused by the said William Brunswick taking, on said day, poison known as cyanide of potassium." The burden was, therefore, imposed upon appellant to prove three facts: (a) that Brunswick did, in fact, take cyanide of potassium; (b) that he took it accidentally; and (c) that it caused his death. Laessig v. T. P. A., 169 Mo. 272; Norman v. Commercial Travelers, 163 Mo.App. 184; Bathe v. Insurance Co., 152 Mo.App. 94; Glover v. Henderson, 120 Mo. 367; Ranney v. Lewis, 182 Mo.App. 64; Berger v. Storage Co., 136 Mo.App. 42; O'Shea v. Lehr, 182 Mo.App. 693; Wright v. Commercial Travelers, 188 Mo.App. 463; Insurance Co. v. Vandecar, 86 F. 282; Taylor v. Insurance Co., 110 Iowa 621; Carnes v. Traveling Men's Association, 106 Iowa 281; Goodes v. Commercial Travelers, 174 Mo.App. 330; Vernon v. Traveling Men's Assn., 158 Iowa 602; Traveler's Insurance Co. v. McConkey, 127 U.S. 666; Whitlatch v. Fidelity & Casualty Co., 149 N.Y. 45. (4) Where a case is tried upon the theory that the insured committed suicide and where evidence is offered by the plaintiff tending to prove that he committed suicide, there can be no application of the presumption that the insured did not commit suicide. Laessig v. T. P. A., 169 Mo. 272; Sowders v. Railroad Co., 127 Mo.App. 124; Caldwell v. Traveling Men's Association, 156 Iowa 327; Supreme Tent v. King, 142 F. 678. (5) The instructions given to the jury, at the instance of respondent, correctly stated the law in view of the theory upon which appellant tried this case. Laessig v. T. P. A., 169 Mo. 272; Reynolds v. Casualty Co., 201 S.W. 1128; Lamport v. Aetna Life Ins. Co., 199 S.W. 1020.

FARIS, J. Woodson, J., dissents; Bond, C. J., not sitting.

OPINION

[278 Mo. 160] In Banc

FARIS, J.

This is an action by plaintiff as beneficiary on a policy of insurance issued by defendant, insuring one William Brunswick, the husband of plaintiff, against death by accident. Upon a trial by a jury, the verdict was for the defendant. From the resulting judgment plaintiff appealed to the St. Louis Court of Appeals, wherein, upon a hearing, the case was reversed for error and ordered remanded for a new trial. [See Brunswick v. Standard Accident Ins. Co., 187 S.W. 802.] The Court of Appeals, however, being of the opinion that the views announced by them in this case were in conflict with the opinion of the Springfield Court of Appeals in the case of Scales v. National Ins. Co., 186 S.W. 948, made an order transferring the case to this court, pursuant to the mandate of the Constitution. Hence, our jurisdiction.

The petition seems to be conventional. After averring formally the issuance of the policy, the petition sets out substantially the conditions of the policy under which the liability of defendant for accidental death of the assured shall accrue. These conditions, as the petition and the policy recite them,

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are that liability accrues in the event of the death of assured "resulting directly, exclusively and independently of all other causes from accidental bodily injuries." The policy contains, following the above-quoted conditions, as to the cause of death, an exception, to-wit: "Except when self-inflicted while insane," which is not set out, or in any wise referred [278 Mo. 161] to in the petition. Continuing, the petition avers that assured died on the 22nd day of April, 1913, and that his death resulted "directly, exclusively and independently of all other causes from accidental bodily injuries, from and caused by the said William Brunswick taking on said day poison known as cyanide of potassium." Other allegations are made as to additional increments to the principal sum of $ 2500, arising, it is averred, from annual renewals of the policy, and as to damages and attorney's fees accruing from an alleged vexatious refusal to pay. But these have no pertinence to the points vexing us upon this appeal.

The answer of defendant, so far also as it is pertinent to the questions mooted here, was an admission of the...

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