Parker v. Ætna Life Ins. Co.

• Decision Date: 06 June 1921
• Docket Number: No. 21783.,21783.
• Citation: 289 Mo. 42,232 S.W. 708
• Court: Missouri Supreme Court
• Parties: PARKER v. ÆTNA LIFE INS. CO.

232 S.W. 708

289 Mo. 42

PARKER v. ÆTNA LIFE INS. CO.

No. 21783.

Supreme Court of Missouri, Division No. 1.

June 6, 1921.

Motion for Rehearing or to Transfer to Court En Banc Denied July 11, 1921.

Appeal from Circuit Court, Jackson County; Thomas J. Seehorn, Judge.

Action by Susan A. Parker against the Ætna Life Insurance Company. Judgment for plaintiff, and defendant appeals. Affirmed.

J. C. Rosenberger and McVey & Freet, all of Kansas City, for appellant.

Haff, Meservey, German & Michaels and Humphrey, Boxley & Reeves, all of Kansas City, for respondent.

SMALL, C.

I. This was a suit to recover $20,000 and interest, the amount of a life insurance policy issued by the defendant company, July 11, 1914, upon the life of Carl S. Parker, in favor of his wife, Susan A. Parker, the plaintiff. The policy was issued in the city of Los Angeles, Cal., where the insured and his family then resided. The insured died from a gunshot wound at his home in Los Angeles on February 10, 1915.

The answer was, first, a general denial, and that the insured committed suicide in contravention of a provision in the policy "that, if said Carl S. Parker should within one year from July 11, 1914, the date of the policy, commit suicide, while sane or insane, then said policy should be null and void, and defendant should not be liable thereunder; that on February 10, 1915, within said one year from the date of the policy, the said Carl S. Parker did commit suicide by firing with his own hand a bullet from his pistol into his brain." There was a further allegation in the answer that under the laws of California, where the contract was made and assured and beneficiary lived, and where the assured died, such clause in the policy against suicide, sane or insane, was valid, and a breach thereof avoided the policy; also that a part of the premium, $540.40, remained unpaid.

The reply put the affirmative defenses in issue.

The plaintiff offered the policy in evidence, a premium receipt, showing that the premium was paid until the 11th day of January, 1915. (The next premium was due the next day after insured's death.) Defendant's counsel then admitted the insured's death, and that defendant was making no point that notice of death was not given in due form. Plaintiff also introduced in evidence a letter from defendant, dated May 8, 1916, stating that defendant did not forward any blanks upon which Susan A. Parker could make proof of the death, for the reason that the policy had become absolutely null and void by reason of the suicide of the insured. Plaintiff then rested.

Defendant then introduced its evidence, after which plaintiff offered evidence in rebuttal.

The salient facts which the evidence tended to prove are substantially as follows: The insured was about 38 years of age, married, had three children, two girls, 7 and 8 years old, and a boy 11 years. He had lived in Los Angeles about 8 years. His home life seemed to be of the happiest. He was a most kind and affectionate son, husband, and father. He was in good health, and a fine specimen of man, full of life and energy, his associates testifying to his great capacity for work, his kindliness to and thoughtfulness of others, and that he was about the "best salesman in Los Angeles." But he was "a good fellow," and sometimes addicted to drink, but not enough to make any impression on his health or strength. He was, in other respects, a man of good habits and orthodox in religious belief. He was in the wholesale plumbing supplies business, which had prospered until within a comparatively short time before his death, when, on account of the World War, business had fallen off, and he and his associates had considered the advisability of buying or selling out to a competitor. He left home on the morning of his death, February 10, 1915, in his usual happy and cheerful frame of mind to meet such competitor. They were together negotiating all day, and the result was that his company agreed to buy out the other company, and to pay them the inventory price of their goods, about $40,000, in equal payments, in 3, 6, 9, and 12 months after date. The deal was closed some time in the afternoon. In the meantime they had taken lunch together and also quite a number of drinks of intoxicating liquor. Defendant's evidence tends to show they took more drinks afterwards, perhaps as many as eight or nine up to about 6 o'clock that evening, when Parker accompanied Col. Lally, president of the competing concern, which they had bought out, to his train for San Francisco, where he resided. At that time Parker was somewhat "lit up," as Col. Lally testifies, but went with him to his car and tapped on the car window and waived him good-bye in the best of spirits. As he left the depot, Parker became somewhat playful and jostled one of the "red caps", who became angered, and Parker gave him a dollar to make amends. From the depot, he was driven to a hotel, where he got shaved, and from there started home in a taxi but stopped on the way at the California Club, where he drank some champagne, and his friend Leeds, who declined to drink with him, suggested to him to take a room and rest a while before going home so he could be sobered up a bit. But he refused, and, with the assistance of his friend, got into a taxi and drove home, where he arrived about 7:20 p. m. He and Mrs. Parker had accepted an invitation to dine that evening at the house of a friend at 7 p. m. Mrs. Parker was dressed and waiting and watching for him when the taxi arrived, and met him at the curb. She observed that he had been drinking, and said to him that it was too late to keep their engagement for dinner. The taxi driver says she upbraided him in a somewhat angry manner, while she says she only requested him to alight and go into the house with her, when he insisted on going to dinner to their friend's house "as he was." What happened afterwards is graphically described by appellant's learned counsel in their brief as follows:

"She after a time persuaded her husband to get out of the taxi and into the house. He took off his coat and hat in the hall. They went upstairs into their bedroom, and she turned to the telephone in the room to call her friends and cancel the engagement. While at the phone she turned and saw her husband standing in front of the chiffonier looking into the mirror. He held a revolver in his right hand, a pistol which he had placed in the chiffonier drawer on an occasion some two or three weeks before. She screamed, rushed to her husband, snatched the revolver from his hand, and ran with it into the hallway. He followed; overtook her in the hall; caught hold of her roughly and threw her down. In the struggle for possession of the revolver she managed to toss it over the banisters onto the stair landing below. Parker immediately let go his wife and ran to the stairway to secure the revolver. In his haste or owing to the struggle he slipped or lost his balance and slid down the stairs on his back, feet in the air, bringing up on the landing on top of the revolver. Attracted by the screams of Mrs. Parker, a maid (Anna Williamson) ran from the rear into the front hall downstairs. She saw Parker fall, saw him get up, pick up the revolver and come rapidly down, and, thinking he needed assistance, she started toward him, but he pointed the gun toward her. She saw the revolver, saw his flushed face, set features, and staring eyes, and she instinctively screamed and ran. Parker came on. The wife followed. He turned with the pistol and threatened her, but she still came on. He ran out from the hall and into the dining room, she chasing him, running as fast as she could. He went on through a swinging door into the pantry. The door came to and she could not pass. She pounded on the door frantically with her fists; an instant, and then the shot. She pulled open the door, leaned over the fallen body of her husband, saw a bullet hole marked with powder burns in the middle of his forehead, saw the revolver loosely in his right hand, saw that her husband was gone, and fled, screaming, to the neighbors."

The only other witness who saw Parker just before the tragedy was the maid, Anna Williamson, a witness for the defendant, who testified:

"When I arrived at the front hallway I saw Mr. Parker on top of the stairway, and he fell just as I came. He fell on the top stairs and fell to the second landing from the bottom. He slid down the stairs on his back. On reaching the landing he picked up something: At first it looked to me like a piece of wood, and I ran towards him and tried to help him down, and I saw it was a revolver, and I ran back to my room again. Mr. Parker didn't say anything. I was frightened because I knew Mr. Parker was in a condition he didn't know what he was doing because of liquor, and I ran because I was afraid he might do bodily harm to me. Mr. Parker was not like himself. He looked like a man under the influence of liquor. His eyes were very staring and face very red. I had never seen him in that condition before. No; he didn't point towards his face. The revolver was more direct at me, but I don't think he intended to point at—he just held it that way. I don't know whether he intended pointing at anything or not; he was not pointing in any way towards me. Well, think the way he held it it was more pointing to the ceiling. Could not tell correctly what he was pointing at. My thought was he was carrying the revolver very carefully as he went out through the hall, holding it up so that it was not pointed at anybody, but rather holding it up so that it was out of the way so that it could not hurt me or him or anybody else. That is the way it appeared to me."

"Q. I will ask you if Mrs. Parker did make the statement to you that she thought her husband had committed suicide because he was temporarily insane; did she make that statement to you? A. Yes. I think it was the very first evening, when I was undressing...