Aufrichtig v. Columbia National Life Ins. Company

• Decision Date: 06 April 1923
• Parties: EDITH AUFRICHTIG v. COLUMBIA NATIONAL LIFE INSURANCE COMPANY, Appellant
• Court: Missouri Supreme Court

249 S.W. 912

298 Mo. 1

EDITH AUFRICHTIG v. COLUMBIA NATIONAL LIFE INSURANCE COMPANY, Appellant

Supreme Court of Missouri, First Division

April 6, 1923

Appeal from St. Louis City Circuit Court. -- Hon. Karl Kimmel Judge.

Affirmed (upon condition).

Leahy & Saunders for appellant.

(1) The presumption is in favor of a person's sanity, and the burden of proof, is upon the one asserting the contrary. Insurance Company v. Rodel, 95 U.S. 232; Reynolds v. Maryland Casualty Co., 274 Mo. 83. (2) The evidence shows conclusively that there was no accident within the meaning of the policy. Lovelace v Travelers' Protective Assn., 126 Mo. 104; Young v. Ry. Mail Assn., 126 Mo.App. 325; Gates v Travelers' Ins. Co., 218 S.W. 927; Scales v. Insurance Co., 212 S.W. 8; Rollins v. Business Men's Assn., 213 S.W. 52; Lamport v. Ins. Co., 199 S.W. 1024; Laessig v. Travelers' Assn., 169 Mo. 280; Williams v. Accident Assn., 133 N.Y. 366; Aetna Life Ins. Co. v. Vandecar, 86 F. 282. (3) Plaintiff utterly failed to show insanity within the meaning of an insurance policy. Borradaile v. Hunter, 5 Man. & Gr. 639; Benoist v. Murrin, 58 Mo. 323; Adkins v. Columbia Life Ins. Co., 70 Mo. 27; Sparks v. Indemnity Co., 61 Mo.App. 109; Clift v. Schwabe, 3 Man. Gr. & Scott, 438; Dufaur v. Professional Life Ins. Co., 25 Beav. 599; Dean v. Mutual Life Ins. Co., 4 Allen (Mass.) 96; Cooper v. Mass. Mutual Life Ins. Co., 102 Mass. 227; Nimick v. Mutual Life Ins. Co., 1 Big. Ins. Cas. 689; Gray v. Union Mutual Life Ins. Co., 2 Big. 4; Van Zandt v. Mutual Benefit Life Ins. Co., 55 N.Y. 169; American Life Ins. Co. v. Isetts Admr., 74 Pa. St. 176; Biglow v. Berkshire Life Ins. Co., 3 Otto, 284; Pierce v. Travelers' Life Ins. Co., 34 Wis. 389; Chapman v. Republic Life Ins. Co., 5 Big. L. & A. Cas. 110; De Gorgorza v. Knickerbocker Life Ins. Co., 65 N.Y. 232; Masonic Life Assn. v. Pollard's Guardian, 89 S.W. 219; Sabin v. Senate of the National Union, 90 Mich. 177; Fowler v. Mutual Life Ins. Co., 4 N. Y. (Lansing) 202; Supreme Council of Royal Arcanum v. Wishart, 192 F. 453; Commonwealth v. Wireback, 190 Pa. St. 138; Foreman's Will, 54 N.Y. 274; Banks v. Goodfellow, L. R. 5 Q. B. 549, 39 L. R. J. B. 237; Jenkins v. Morris, 14 Ch. D. 674, 42 L. T. Rep. (N. S.) 817; Smee v. Smee, 5 P. D. 84, 44 J. P. 220, 28 Wkly. Rep. 703; State v. Spencer, 21 N. J. L. 196; McNaughten's Case, 10 C. L. F. 200, 8 Eng. Reprint 718; Duffield v. Morris, 2 Harr. 375; Mutual Benefit Life Ins. Co. v. Davies, 87 Ky. 541; Knicker-bocker Life Ins. Co. v. Peters, 42 Md. 414; Phadenhauer v. Germania Life Ins. Co., 7 Heisk. 567; 22 Cyc. 1238; Weed v. Mutual Life Ins. Co., 70 N.Y. 561. (4) The closing argument of counsel for the plaintiff was highly improper, inflammatory and prejudicial to the interests of defendant, and this together with the fact that the plaintiff sat before the jury weeping justified the granting of a new trial. (5) The form of the verdict was improper; there was no evidence of a vexatious refusal to pay; the jury improperly allowed attorneys' fees, although the jury found no damages for vexatious refusal to pay. Non-Royalty Shoe Co. v. Phoenix Insurance Co., 277 Mo. 399, 21 S.W. 42; Patterson v. Insurance Co., 174 Mo.App. 44; Kellar v. Insurance Co., 198 Mo. 440; Rollins v. Business Men's Accident Assn., 220 S.W. 1022, 213 S.W. 52; Berryman v. Maryland Motor Car Ins. Co., 204 S.W. 738; Merkel v. Railway Mail Assn., 226 S.W. 229. (6) Instructions improperly given on behalf of plaintiff are not cured by defendant's instructions. Bellows v. Ins. Co., 203 S.W. 985; Hall v. Coal Co., 260 Mo. 351; State ex rel. v. Ellison, 272 Mo. 583.

Jones, Hocker, Sullivan & Angert, Amici Curiae, also for appellant.

Sale & Frey and Charles M. Hay for respondent.

(1) Death due to cyanide of potassium taken while insane is within the purview of the policies in suit insuring against "loss resulting from bodily injuries effected directly and independently of all other causes through accidental means." Brunswick v. Ins. Co., 278 Mo. 154, 7 A. L. R. 1213; Andrus v. Bus. Men's Accident Assn., 283 Mo. 442; Woodlock v. Aetna Life Ins. Co., 225 S.W. 1000. Scales v. Natl. Life & Acc. Ins. Co., 212 S.W. 8; Newell v. Ins. Co., 212 S.W. 991. (a) The provision in the accident policies in suit denying liability where death results from "self-destruction while insane" is void. Sec. 6150, R. S. 1919; Sec. 6945, R. S. 1909; Cases cited above. (b) It is conceded by appellant that the death of the insured (respondent's husband) was due to cyanide of potassium taken by the insured. The overwhelming evidence established and the jury found that the deadly drug was taken while the insured was insane. Respondent was therefore entitled to recover. (2) Death by suicide of an insane person is death by accident. Cases supra; Mutual Life Ins. Co. v. Terry, 82 U.S. 580, 21 L.Ed. 236; Charter Oak Life Ins. Co. v. Rodel, 95 U.S. 232, 24 L.Ed. 433; Manhattan Life Ins. Co. v. Broughton, 109 U.S. 121, 27 L.Ed. 878; Conn. Mutual Life Ins. Co. v. Lathrop, 111 U.S. 612, 28 L.Ed. 536; Accident Insurance Co. v. Crandal, 120 U.S. 527, 30 L.Ed. 740; Ritter v. Ins. Co., 169 U.S. 139, 42 L.Ed. 693; Conn. Mutual Life Ins. Co. v. Akens, 150 U.S. 468, 37 L.Ed. 1148; Whitfield v. Aetna Life Ins. Co., 205 U.S. 489, 51 L.Ed. 895; John Hancock Co. v. Moore, 34 Mich. 41; Breasted v. Farmers Loan & T. Co., 4 Hill, 72; Scheffer v. Ins. Co., 25 Minn. 534; Life Assn. of America v. Waller, 57 Ga. 533; Eastabrook v. Insurance Co., 54 Me. 224; Phillips v. Ins. Co., 26 La. Ann. 404; Blackstone v. Ins. Co., 74 Mich. 592, 3 L. R. A. 486; Knickerbocker Ins. Co. v. Peters, 42 Md. 414; Boardman v. Woodmen, 47 N.H. 120, 147; State v. Pike, 49 N.H. 429; Hathaway v. Ins. Co., 48 Vt. 336; Moore v. Conn. Mut. Life Ins. Co., 1 Flipp. 363; New Home Life Assn. v. Hagler, 29 Ill.App. 437; Michigan Mutual Ins. Co. v. Naugle, 130 Ind. 79; American L. Ins. Co. v. Isett, 74 Pa. St. 176; Schultz v. Ins. Co., 40 Ohio St. 217; Phadenhauer v. Germania Life Ins. Co., 7 Heisk. 567; Hiatt v. Ins. Co., 2 Dill. 572; Waters v. Conn. Mut. Life Ins. Co., 2 F. 892; Mutual L. Ins. Co. v. Leubrie, 71 F. 843; 1 Wharton and Stilles Med. Jur., sec. 249, 14 R. C. L. 1230, 1231. (3) Sec. 6945, R. S. 1909, (Sec. 6150, R. S. 1919), is founded upon the salutary principle that where one honestly and in good faith acquires and pays insurance upon his life without any dishonest intention, the objects of his solicitude ought not to be embarrassed in the recovery of the indemnity by speculative and impractical inquiry into an invisible, mysterious and supposititious state of mind which has supervened as an impulse to self-destruction. Woodlock v. Aetna Life Ins. Co., 225 S.W. 1000; Conn. Mut. Life Ins. Co. v. Akens, 109 U.S. 131, 27 L.Ed. 882. (4) Definition is a description of a thing by its properties; an explanation of a word or term (Webster), and Instruction 3 embodies the definition of the word as approved by the U. S. Supreme Court in Ritter v. Ins. Co., 169 U.S. 149, 42 L.Ed. 696. See also Davis v. U.S. 165 U.S. 373, 378. (5) The evidence demonstrating insanity of the assured was so convincing and overwhelming that the trial court would have been justified in setting aside a verdict if in favor of defendant. No prejudicial error was committed against the appellant. The verdict is so clearly for the right party, the judgment ought to be affirmed. (6) Instruction 10 requested by plaintiff, and Instruction 11 asked by defendant and given by the court, expressly told the jury that they could not allow damages or attorney's fees unless they found that defendant without reasonable cause refused to pay. There was therefore an express finding that the refusal to pay was vexatious. At the instance of both plaintiff and defendant the jury were told that they may allow damages and they may allow an attorney's fee if the evidence justified. A common-sense construction of the statute permits such a finding -- the language is clearly permissive and should not be construed to mean that a jury must allow an attorney's fee if it allows damages, or vice-versa. There is no decision of this court holding that a jury in such case must allow both damages and an attorney's fee or that it must disallow both. The case of Shoe Co. v. Assurance Co., 277 Mo. 420, cited by appellant, does not so hold. (7) There was ample affirmative proof to show vexatious refusal to pay. If it is possible to prove vexatious refusal, it was proved in this case. Appellant cannot complain because it was not mulcted to the full extent allowed under the statute. The whole question of vexatious delay or refusal is a matter of fact to be determined by the jury. Kelly v. Ins. Co., 198 Mo. 460; Young v. Ins. Co., 269 Mo. 1; Fay v. Ins. Co., 268 Mo. 390; Patterson v. Ins. Co., 174 Mo.App. 44; Non-Royalty Shoe Co. v. Assurance Co., 277 Mo. 399; Jones v. Ins. Co., 173 Mo.App. 16.

OPINION

GRAVES, P. J.

Plaintiff was the wife, and at the institution of this suit the widow, of one Charles Aufrichtig. The suit is to recover some fifteen thousand dollars upon two policies of insurance taken out by Charles Aufrichtig in defendant company. The policies are what is known as accident insurance policies. The first policy provides for payment of the full sum in it mentioned in the event of death occasioned by "bodily injuries sustained through accidental means and resulting directly from such accident independently and exclusive of all other causes." This first policy, declared upon in the first count of the petition, also contained this clause: "This policy does not cover self-destruction or any attempt thereat while sane or insane."

This policy was originally for $ 5,000, but under its terms the principal sum had reached the limit of $ 7,500 at the death of Aufrichtig, so...