Applegate v. Travelers' Ins. Co.

• Citation: 153 Mo. App. 63,132 S.W. 2
• Parties: APPLEGATE v. TRAVELERS' INS. CO. OF HARTFORD, CONN.
• Decision Date: 10 November 1910
• Court: Court of Appeal of Missouri (US)

132 S.W. 2

153 Mo. App. 63

APPLEGATE v. TRAVELERS' INS. CO. OF HARTFORD, CONN.

St. Louis Court of Appeals, Missouri.

November 10, 1910.

Rehearing Denied November 29, 1910.

1. COURTS (§ 231)—JURISDICTION—CONSTITUTIONAL QUESTIONS.

Under Const. art. 6, § 12, and Const. Amend. 1884, § 5 (Ann. St. 1906, pp. 218, 244), giving the Supreme Court jurisdiction in cases involving the construction of the state or federal Constitution, the Court of Appeals is without

jurisdiction of a cause where a question open for consideration involving the construction of the federal Constitution is properly presented by the record.

2. COURTS (§ 231)—JURISDICTION—CONSTITUTIONAL QUESTIONS.

Where a statute, construed in a particular way, has been adjudged constitutional by the Supreme Court, an appeal, though attacking the validity of the statute as so construed, does not raise a constitutional question within the jurisdiction of the Supreme Court, but the Court of Appeals has jurisdiction to determine the case on its merits.

3. COURTS (§ 231)—JURISDICTION—CONSTITUTIONAL QUESTIONS.

An appeal attacking the validity of Rev. St. 1909, § 6945, declaring that suicide shall be no defense to a suit on a policy, does not raise a constitutional question within the jurisdiction of the Supreme Court, where the statute, though construed to apply to domestic and foreign insurance companies, has been adjudged valid by the state and federal Supreme Courts.

4. INSURANCE (§ 465)—DEFENSE OF SUICIDE— STATUTES.

Rev. St. 1909, § 6945, declaring that suicide shall be no defense to a suit on a policy, applies to an accident policy issued by a foreign insurance company, and insuring against death through external, violent, and accidental means, and limiting the liability in case of death by poison, and relieving insurer from liability for death by suicide, and insurer is liable for the whole amount of the policy on insured committing suicide by poison.

Appeal from St. Louis Circuit Court; Hugo Muench, Judge.

Action by Mary L. Applegate against the Travelers' Insurance Company of Hartford, Connecticut. From a judgment for plaintiff, defendant appeals. Affirmed.

The plaintiff in this cause, respondent here, brought her action against the defendant, appellant here, stating as a cause of action: That she was the wife of one Oliver H. Applegate; that the defendant is a corporation created, organized, and existing under and by virtue of the laws of the state of Connecticut, but engaged in the business of selling contracts of life insurance in the state of Missouri and having its office in the city of St. Louis; that, in consideration of the payment to it by Oliver H. Applegate of $15, defendant executed and delivered its policy of insurance in writing, whereby it insured the life of Applegate in the sum of $3,000, for the benefit of his wife, plaintiff, for a term of 12 months from the 23d of March, 1904, with the privilege of renewing the policy from year to year on the payment by Applegate at each renewal of the sum of $15; that, according to the terms of the policy of insurance, defendant agreed to pay plaintiff, in event of the death of Oliver H. Applegate, $450 in addition to the principal sum of $3,000, provided the policy of insurance was renewed for three consecutive years after the first period of 12 months; that Oliver H. Applegate renewed the policy for a period of three years by the payment to the defendant of the sum of $15 for each renewal period of one year, as aforesaid. It is further averred in the petition that the defendant, through its policy, stipulated and agreed with Oliver H. Applegate, hereafter called the insured, that in event of the death of the insured from bodily injuries effected through external, violent, and accidental means, within 90 days from the date of the injuries, it would pay to the plaintiff the sum of $3,450, provided the death occurred during the third renewal period of the policy of insurance, and provided further that the policy was in full force at the time of the death of the insured. The petition further avers that the policy provided that, in the event of the death of the insured, loss of limb or sight, or disability caused by gas, vapor, or poison, the company shall pay but one-tenth of the amount otherwise payable for bodily injuries to the insured; anything to the contrary in said policy notwithstanding. It is further averred that the insured died on the 18th of November, 1907, at St. Louis, "by suicide committed by said Oliver H. Applegate by drinking a liquid poison known as carbolic acid"; that up to the time of his death all the premiums accrued and due upon the policy had been duly paid and the insured had complied with its conditions and provisions. Notice to the company and proof of death is averred, and it is averred that the defendant had offered to pay plaintiff one-tenth part only of the amount, but had declined and refused to pay her the remaining nine-tenths part of the amount claimed to be due on the policy, to wit, $3,105; that no part of the full amount of $3,450 had been paid. For this amount, with interest and costs, judgment is prayed. The policy sued on was, as averred in the petition, filed with it and marked "Exhibit A."

In the answer the defendant admits that plaintiff was the wife of Applegate; that it (defendant) is a corporation, organized under the laws of Connecticut; that it issued the policy sued on; and that the policy filed as "Exhibit A" is the one referred to; "but the defendant expressly denies that it ever issued to said Oliver H. Applegate any life insurance policy." It further admits that Applegate died in the city of St. Louis, on the day alleged, from the effects of a poison known as carbolic acid, which he drank on that date. Admits that proofs had been duly furnished by plaintiff of the death of Applegate, as required by the policy. Admits "that it was provided in said policy of insurance above referred to in this answer that in the event of the death of the said Oliver H. Applegate, loss of limb or sight, or disability caused by gas, vapor, or poison, the defendant should pay but one-tenth of the amount otherwise payable under the terms of the policy; anything to the contrary in said policy notwithstanding." It is then averred "that, under the terms of the policy, if the death of the said Oliver H. Applegate had resulted wholly from external, accidental, and violent means other than the inhaling of gas or vapor or taking of poison on November 18, 1907, this defendant would have been liable to the plaintiff for the sum of $3,450, and this defendant says that by said clause above referred to it was expressly provided that, if the death of the insured * * * was caused by poison, the limit of this defendant's liability under said policy should be one-tenth of the principal sum thereof; that is to say, the limit of its liability should be $345. This defendant therefore says that inasmuch as the death of the deceased, Oliver H. Applegate, was caused by carbolic acid, which is a poison, this defendant at the date of the death of said Oliver H. Applegate became liable to the plaintiff in the sum of $345 only." It then avers that it tenders and brings into court this sum with interest on it from the date of the death of the insured and tenders the sum to plaintiff, "in full payment and settlement of defendant's liability under the terms of said policy of insurance, as expressly agreed therein," and offers to allow judgment to be entered in favor of plaintiff against the defendant for that sum, $354.77, with costs of suit to the date of filing the answer. All other allegations of the plaintiff's petition are denied. It appears by the abstract of the record that, on the day of filing this answer, defendant by leave of court paid into court the above sum and had paid all costs accrued to that date.

A reply was filed admitting that the insured died as the result of taking carbolic acid, a poison, that it was taken by the insured with the purpose on his part of committing suicide, and that the act of taking it was a suicidal act which resulted in the death of the insured. It is further averred that the policy of insurance, Exhibit A, is a policy of insurance on the life of Oliver H. Applegate, and that by reason of the aforesaid facts plaintiff is entitled to judgment against defendant for the full amount as prayed for in the petition. All other allegations in the answer are denied, and plaintiff, declining to accept the sum tendered and refusing to accept judgment in her favor for the amount tendered and costs, again prays for judgment for the full amount sued for, namely, $3,450, and interest and costs.

The case was tried on an agreed statement of facts before the court; a jury being waived. The agreed statement of facts is embodied in the bill of exceptions and set out in the abstract. The contract of insurance or policy is embodied and set out in full. It is dated March 23, 1904. Summarizing it, it sets out, among other matters, that, in consideration of the warranties thereinafter set forth and of $15, the defendant company insured Oliver H. Applegate for the term of 12 months from March 23, 1904, "against bodily injuries effected through external, violent, and accidental means, as specified in the schedule below," the principal sum of the first year being $3,000, with 5 per cent. increase annually for 10 years, amounting to $4,500, each consecutive full year's renewal of the policy adding 5 per cent. to the principal sum of the first year until such additions shall amount to 50 per cent. and thenceforth, so long as the policy is maintained in force, the insurance would be for the original sum plus the accumulations theretofore granted. The schedule of indemnities followed. That designated as "Part A" is for loss of life; of both hands by severance at or above the wrist; of both feet by severance at or above the ankle; of one hand and one foot at those places;...