Bennett v. The Standard Accident Insurance Co.

• Decision Date: 03 January 1922
• Citation: 237 S.W. 144,209 Mo.App. 81
• Parties: FREDERICK D. BENNETT, by HARRIS N. BENNETT, his Guardian, Respondent, v. THE STANDARD ACCIDENT INSURANCE COMPANY, a Corporation, Appellant
• Court: Missouri Court of Appeals

237 S.W. 144

209 Mo.App. 81

FREDERICK D. BENNETT, by HARRIS N. BENNETT, his Guardian, Respondent, v. THE STANDARD ACCIDENT INSURANCE COMPANY, a Corporation, Appellant

Court of Appeals of Missouri, St. Louis

January 3, 1922

Appeal from the Circuit Court of the City of St. Louis.--Hon Granville Hogan, Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

M. U Hayden for appellant.

(1) It is not only within the power, but it is also the duty, of this court to search the record in this case and determine therefrom whether there is any substantial evidence to support the verdict of the jury and the judgment of the court entered thereon. State ex rel. Bank v. Sturgis, 276 Mo. 559; Moore v. Railroad Company, 268 Mo. 31; Borack v. Mosler Safe Co., 231 S.W. 623; Phillips v. Traveler's Insurance Co., 231 S.W 947; Stafford v. Adams, 113 Mo.App. 717; Pickens v. Railroad Co., 125 Mo.App. 669; Dutcher v. Railroad, 241 Mo. 137; State ex rel. Trust Co. v. Hallen, 165 Mo.App. 422. (2) By the terms of the policy sued on, appellant agreed to pay to respondent the indemnity therein specified only in the event that he suffered disability "resulting from bodily injuries effected directly, exclusively and independently of all other causes, through external, violent and accidental means, except when intentionally self-inflicted." The burden of proving that the injuries alleged to have been sustained by respondent were effected through accidental means, under the law in this State, rested upon respondent. Laessig v. T. P. A., 169 Mo. 262; Scales v. Insurance Co., 212 S.W. 8; Newell v. Fidelity & Casualty Co., 212 S.W. 991; Brunswick v. Insurance Co., 278 Mo. 154; Lamport v. Aetna Ins. Co., 199 S.W. 1020; Lamport v. General Accident Corp., 272 Mo. 19; Prentiss v. Insurance Co., 225 S.W. 695; Phillips v. Insurance Co., 231 S.W. 947; Norman v. Commercial Travelers, 163 Mo.App. 175; Wright v. Commercial Travelers, 188 Mo.App. 457; Goodes v. Commercial Travelers, 174 Mo.App. 330; U. S. Fidelity & Guar. Co. v. Blum, 270 F. 946; Grosvenor v. Fidelity & Casualty Co., 102 Neb. 629. (3) The trial court erred in submitting this case to the jury and this judgment should be reversed for the following reasons: (a) There is no substantial evidence in the record tending to establish that respondent's disability resulted from bodily injuries effected through accidental means within the meaning of the policy. See authorities cited under Point 2; Mutual Accident Association v. Barry, 131 U.S. 100; 4 Cooley's Briefs on Insurance, pp. 3156-3157; Newsome v. Insurance Co., 143 Ga. 785; Meister v. General Accident, 179 P. 913; Erb v. Accident Co., 232 Pa. 215; Phelan v. Insurance Co., 38 Mo.App. 640; Collins v. Fidelity & Casualty Co., 63 Mo.App. 253; Hester v. Fidelity & Casualty Co., 69 Mo.App. 186; Lovelace v. T. P. A. Co., 126 Mo. 104; Hutton v. Insurance Co., 267 Ill. 267. (b) There can be no presumption that the inhalation of gas, from which it is contended respondent suffered, was effected through accidental means. Scales v. Insurance Co., 212 S.W. 8; Laessig v. T. P. A., 169 Mo. 262; Brunswick v. Insurance Co., 278 Mo. 154. (c) Intentional self-destruction by a sane man is not an accident and therefore bodily injuries resulting from an unsuccessful attempt to commit suicide cannot be held to be effected through accidental means. If the completed act is not an accident, the unsuccessful attempt cannot be. Scales v. Insurance Co., 212 S.W. 8; Newell v. Fidelity & Casualty Co., 212 S.W. 991; Brunswick v. Insurance Co., 278 Mo. 154. (d) There is no evidence in this record tending to establish that, at the time when he suffered the inhalation of gas, respondent was not sane. He is presumed to have been sane at that time. The burden of proving that he was not sane was imposed upon respondent. See cases cited under preceding paragraph (c). (e) The evidence introduced and strongly relied upon by respondent, in this case, wholly negatives and disproves the theory of an accidental inhalation of gas as averred in his petition. (f) Under the uncontradicted evidence, the policy was void ab initio because of certain breaches of warranty committed by respondent in applying for the policy. The case was tried by respondent upon the theory--and, at his instance, the jury were so instructed--that the misstatements made by respondent in applying for the policy were warranties. The uncontroverted evidence establishes that they were not true. Respondent's theory was that they were waived. Therefore no question here arises as to whether this case is, in anywise, affected by the misrepresentation statute socalled, in force in this State (Sec. 6142, R. S. 1919). Long Bros. v. U. S. Fidelity & Guar. Co., 130 Mo.App. 421; Commercial Bank v. Bonding Co., 194 Mo.App. 224; 1 Bacon on Benefit Societies (3 Ed.), 234, p. 512; Claver v. Woodmen, 152 Mo.App. 164; Trabue v. Insurance Co., 121 Mo. 75; State ex rel. Schmohl v. Ellison, 266 Mo. 580; Loehner v. Insurance Co., 17 Mo. 247; Crossan v. Insurance Co., 133 Mo.App. 537; Stephen v. Insurance Co., 61 Mo.App. 194; Murphy v. Insurance Co., 61 Mo.App. 323. (4) Statements in an application for a policy of this character which by the terms of the policy are made warranties, must be true or the policy is void. Commercial Bank v. Bonding Co., 194 Mo.App. 224; Claver v. Woodmen, 152 Mo.App. 164; Long Bros. v. United States Fidelity & Guar. Co., 130 Mo.App. 421. (5) Evidence wholly lacking in probative force cannot be regarded as tending to establish any material fact in a case, even though such evidence be admitted without objection. Sexton v. Railway Co., 245 Mo. 254; Stafford v. Adams, 113 Mo.App. 717; Pickens v. Railway Co., 125 Mo.App. 669; Bowlin v. Railway Co., 125 Mo.App. 419; Cartlich v. Railway Co., 129 Mo.App. 721; Majors v. Parkhurst, 124 Mo.App. 107; David v. Cider Co., 186 Mo.App. 13. (6) Instructions should be within the scope, not only of the evidence, but also of the allegations of the petition, as well. They may not be broader than the pleadings, nor may they yet cover a wider range than the facts established by the evidence. They should not refer to the jury matters not charged in the petition or established by the evidence. Hall v. Coal & Coke Co., 260 Mo. 351; State ex rel. Long v. Ellison et al., 272 Mo. 571; State ex rel. Coal Co. v. Ellison, 270 Mo. 645; Martin v. Railway Co., 204 S.W. 589; Hufft v. Railroad, 222 Mo. 286; DeGonia v. Railroad, 224 Mo. 564; Devlin v. St. Louis, 252 Mo. 203; Riley v. Independence, 258 Mo. 671; Beave v. Transit Co., 212 Mo. 331; Davidson v. Transit Co., 211 Mo. 320; Mulloy v. Beal & McNamara Painting Co., 214 S.W. 405; Davis v. Railroad, 192 Mo.App. 419; McDonald v. Street Railway, 164 Mo.App. 111; Radtke v. Box Company, 229 Mo. 1; Tinkle v. Railroad Co., 212 Mo. 445; Smoot v. Kansas City, 194 Mo. 513. Young v. Dunlap, 195 Mo.App. 119; Robertson v. Telegraph Co., 186 Mo.App. 281; Miller v. Railroad, 180 Mo.App. 371; Smart v. Railroad, 164 Mo.App. 61; Quinley v. Traction Co., 180 Mo.App. 287; Schroeder v. Transit Co., 111 Mo.App. 67; Burrows v. Linkes, 180 Mo.App. 447; Abbott v. Mining Co., 112 Mo.App. 550; Marques v. Koch, 178 Mo.App. 143; Greenstein v. Foundry Co., 178 S.W. 1179; Gage & Co. v. Bank of Holcomb, 196 S.W. 1077; Burgess v. Ins. Co., 211 S.W. 114; Boles v. Dunham, 208 S.W. 480; Warner v. Bensinger, 198 S.W. 497; Turnbow v. Dunham, 197 S.W. 103; Wise v. Transit Co., 198 Mo. 546; State ex rel. Bank v. Sturgis, 276 Mo. 559; Forrester v. Products Co., 231 S.W. 668; State v. Edwards, 203 Mo. 539; State v. Rongey, 231 S.W. 609. (7) The theory upon which a litigant tries his case may be determined by his conduct during the trial, as well as by the instructions which he requests. Heller v. Railroad Co., 209 S.W. 567. (8) In an action upon a policy of insurance, the court should not submit the issue of alleged vexatious refusal to pay the loss, in the absence of substantial evidence establishing that the company, without probable cause, refused to pay. Non-Royalty Shoe Co. v. Insurance Co., 277 Mo. 399; Fay v. Insurance Co., 268 Mo. 373; Berryman v. Insurance Co., 199 Mo.App. 503; Blackwell v. Insurance Co., 80 Mo.App. 75; Weston v. Insurance Co., 191 Mo.App. 282; LaFont v. Insurance Co., 193 Mo.App. 543; Strawbridge v. Insurance Co., 193 Mo.App. 687; Rogers v. Insurance Co., 157 Mo.App. 671; Patterson v. Insurance Co. 174 Mo.App. 37.

Lee W. Hagerman and Abbott, Fauntleroy, Cullen & Edwards for respondent.

BIGGS, C. Allen, P. J., Becker and Daues, JJ., concur.

OPINION

BIGGS, C.

--Plaintiff being non compos mentis and acting through his guardian, obtained a judgment against defendant in the sum of $ 1930, from which defendant appeals.

The action is founded on an accident insurance policy which provides a weekly indemnity of twenty-five dollars for total disability resulting from bodily injuries effected directly, exclusively and independently of all other causes through external, violent and accidental means. $ 1300 of the judgment represents weekly indemnity and hospital expenses; the balance $ 630, was assessed by the jury as a penalty in the way of damages and attorneys' fees for vexatious refusal to pay.

It was clearly established that plaintiff received injuries which totally disabled him as a result of inhaling illuminating gas. Whether the gas was inhaled accidentally or voluntarily by his own act was the mooted question in the case. No contention is made that plaintiff was insane at the time. Defendant asserts that the evidence conclusively shows that plaintiff's injuries resulted from an attempt to commit suicide and that the evidence in the case was insufficient to warrant the submission of the cause to a jury on the theory of an accident, and hence its demurrer to the...