Aubuchon v. Metropolitan Life Ins. Co.

• Decision Date: 16 May 1944
• Docket Number: No. 12667.,12667.
• Citation: 142 F.2d 20
• Parties: AUBUCHON v. METROPOLITAN LIFE INS. CO.
• Court: U.S. Court of Appeals — Eighth Circuit

142 F.2d 20 (1944)

AUBUCHON v. METROPOLITAN LIFE INS. CO.

No. 12667.

Circuit Court of Appeals, Eighth Circuit.

April 4, 1944.

Rehearing Denied May 16, 1944.

Jacob M. Lashly, of St. Louis, Mo. (B. Sherman Landau and Al F. Gerritzen, both of St. Louis, Mo., on the brief), for appellant.

Raymond E. LaDriere, of Clayton, Mo. (Samuel W. Fordyce and Walter R. Mayne, both of St. Louis, Mo., Harry Cole Bates, of New York City, and Fordyce, White, Mayne, Williams & Hartman, of St. Louis, Mo., on the brief), for appellee.

Before THOMAS and JOHNSEN, Circuit Judges, and MOORE, District Judge.

JOHNSEN, Circuit Judge.

The action is one under Missouri law to recover on the double indemnity provision of a life insurance policy, by which the insurer had agreed to pay the beneficiary an additional sum equal to the face amount of the policy, if the insured's death resulted from "accidental means", excluding, however, death from "self-destruction" and death from "poison * * * voluntarily or involuntarily, accidentally or otherwise, taken, administered, or absorbed".¹

The insurer had paid the beneficiary the regular death benefit under the policy, but denied liability for the extra indemnity on the grounds (1) that the death was not due to accidental means but to suicide while the insured was sane, and (2) that it resulted "from the taking of a poison called barbital or veronal".

The case was tried to the court without a jury, and judgment was entered for the insurer.

The beneficiary's appeal requires consideration of (1) the meaning of the general term "poison" in an insurance exclusion clause, under Missouri law; (2) whether it reasonably appears that the trial court applied this meaning in finding that barbital or veronal "taken in quantity and under the circumstances and with the result shown in evidence was a poison"; and (3) whether, if the court failed to apply this meaning, the judgment still must be affirmed on the basis of the further finding that "the death of the insured did not result from accidental means." It should be noted that the court did not undertake to make a specific finding on whether the death was or was not one from self-destruction. If there had been a finding that the death was a suicide, the questions suggested above would not be controlling, since a finding to that effect, on the conflicting evidence in the record, would have been conclusive upon us that the beneficiary was not in any event entitled to recover.

It appears from the evidence that the insured had a chronic circulatory ailment in one of his legs, which at times caused him great pain, and that he on these occasions resorted to the use of barbital or veronal tablets.² Such tablets were procurable at any drug store, without medical prescription,³ in containers of ten or twelve tablets, of five grains each. The effect of the drug in normal doses is sedative and soporific. A normal dose is five grains. The insured commonly took one or two tablets at a time. On one occasion, a few months before his death, he had taken ten tablets, without explanation, and was found by his wife in the basement of their home, in a coma. He was taken to a hospital and was revived. He declared to the hospital authorities that he had not attempted to commit suicide, but had taken the tablets to relieve the terrific pain in his leg. One of his acquaintances, however, testified that the insured afterward told him that he had tried to commit suicide and would do so again when he got the chance — but the witness added that the insured had not impressed him as being serious in his remark.

The insured was a heavy drinker. His hospital chart, which was admitted in evidence without objection, showed that his wife had stated that for several years he had averaged "1-3 quarts" of whiskey a day. It also showed that she had said that they had been having marital difficulties, and that he had threatened to kill her and himself if she undertook to get a divorce. On the trial, the wife denied that the insured had made any such threats or that she had made any such statement. After the insured had recovered from the effects of the ten veronal tablets, his wife apparently separated from him and instituted proceedings for divorce. She took a decree in these proceedings immediately following the veronal-taking incident here involved, and, indeed, on the very day that he died. The insured had substituted the present beneficiary in the policy for his wife less than a month before this time.

The insured had on a number of occasions entered the Veterans Hospital at Jefferson Barracks, Missouri, to obtain treatment for his leg. On the last of these occasions, he was released from the hospital on October 24, 1940. He took a room at a St. Louis hotel and apparently resumed his old habits. On October 29, 1940, about noon, he telephoned the beneficiary of the policy, complaining of the severe pain in his leg and asking her to get her husband to take him out to the Veterans Hospital. The husband could not be located, and the insured then telephoned another acquaintance to come to the hotel. According to the latter's testimony, "he told me he was in pain and asked me if I would get him some medicine." The acquaintance got him two tubes of veronal and a bottle of empirin compound at a nearby drug store, as the insured had requested. The insured emptied the two tubes of veronal, consisting of some twenty or twenty-four tablets, into his hand, together with some of the empirin, and "started out to take them", but "spilled quite a few of them." When the acquaintance suggested that that many tablets might "hurt" him, the insured replied that "he took as many as that before and didn't bother him." When the hotel authorities insisted that he go to a hospital, the insured asked to be taken to the Veterans Hospital, where he died three days later, the cause of his death being recorded as acute drug intoxication. A number of witnesses testified that the insured had always had a cheerful disposition and had never manifested any morbid or suicidal tendencies.

Was the insured's death one from poison, under Missouri law?

Missouri follows the general rule that, in construing an insurance policy, "the words of the contract must be interpreted in the way in which they are ordinarily understood" (Dolph v. Maryland Casualty Co., 303 Mo. 534, 261 S.W. 330, 333), that is, "in their plain, ordinary, and popular sense, rather than in a technical or scientific sense" (Farmer v. Railway Mail Ass'n, 227 Mo.App. 1082, 57 S.W.2d 744, 745). In Cleaver v. Central States Life Ins. Co., 346 Mo. 548, 142 S.W.2d 474, 477, 129 A.L.R. 1094, the court, after reiterating that "the test of the meaning, of words commonly used, should be their ordinary and popular meaning", quotes the following definition of poison from Webster's New International Dictionary: "A potion containing a noxious or deadly ingredient; also such ingredient."

Webster further gives as the common meaning of a poison, "Any agent which, introduced (esp. in small amount) into an organism, may chemically produce an injurious or deadly effect". The Encyclopedia Britannica, 14th Ed., states the popular concept of a poison as follows: "The commonly understood definition of a poison would be a substance which if taken internally in small doses is capable of acting deleteriously on the body or of destroying life." Equitable Life Assur. Soc. v. Hemenover, 100 Colo. 231, 67 P.2d 80, 82, 110 A.L.R. 1270, tersely characterizes a poison, in common concept, as "a substance which, in small doses, will destroy life". In looser language, it probably is fair to describe the general uncritical concept of a poison as a substance which ordinarily has such a harmful or deadly chemical effect upon the body that it ought not to be taken internally without technical familiarity or medical direction. The application of this general public concept may not always be absolute as to a particular substance, however, for conceivably there may be substances as to which the specific concept may possibly vary somewhat with the conditions.

Certain substances, such as arsenic, strychnine and carbolic acid, are perhaps so universally regarded as poisons in the public mind that they may be declared to be poisons generally, as a matter of law. As to other substances, there may not be such public familiarity as to have created any general concept, and the question perhaps will be one for appraisal wholly on the evidence produced. As to still other substances some general concept may exist but can not be said to be legally clear, or it may perhaps be subject to some variation with the conditions, so that here also whether the substance involved is a poison will constitute a question of fact in the particular case, but with the right to apply to the evidence such common knowledge and experience as may exist with respect to the substance. Thus, the Missouri courts have held, in Cleaver v. Central States Life Ins. Co., 346 Mo. 548, 142 S.W.2d 474, 129 A.L.R. 1094, and Brock v. American Central Life Ins. Co., Mo. App., 44 S.W.2d 200, that whether the insured's death from carbon monoxide was a death from poison was a question for the jury and not a matter for judicial notice or ruling.

In the present case, we believe that whether the insured's death from barbital or veronal was a death from poison was, under Missouri law, properly a question of fact and not of law. It certainly can not be declared as a matter of law that barbital is absolutely recognized as a poison by general public concept. In addition, the record here contains conflicting expert opinion and other circumstances from which different inferences can be drawn. A pharmacist testified that barbital was sold without a poison label and merely with a notice, "Caution, may be habit-forming"; that its effect was sedative and sleep-producing; and that, in the witness' opinion, death from barbital was not a death from poison....