Bowdon v. Metropolitan Life Ins. Co.
| Decision Date | 25 April 1933 |
| Citation | 59 S.W.2d 787,227 Mo.App. 710 |
| Parties | AGNES D. BOWDEN, APPELLANT, v. METROPOLITAN LIFE INSURANCE CO., RESPONDENT |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court of Pemiscot County.--Hon. John Duncan Judge.
Judgment affirmed.
Cannan & Stiles and Sam J. Corbett for appellant.
Ward & Reeves for respondent.
On August 12, 1929, respondent, in the State of Arkansas, issued its policy of insurance on the life of Dewey B. Bowdon, for one thousand ($ 1,000) dollars. Agnes D. Bowdon, his wife was beneficiary, both then living in Arkansas. The first quarterly premium of five and 65/100 ($ 5.65) dollars was paid on the date of issue; like quarterly payments thereafter, were due on the 12th day of November, February and May. The insured was killed near Truman, Arkansas, on the 5th day of February, 1930, by being struck and run over by a Frisco railroad train, known as the Sunnyland.
Mrs. Bowdon, the widow of insured, shortly after his death, removed to Caruthersville, Pemiscot County, Missouri, where on the 11th day of October, 1930, she filed in the circuit court her suit against respondent, on said policy of insurance, asking for a judgment of $ 1,000 with interest at six per cent from April, 1930, and for ten per cent additional for attorney's fees and for vexatious delay; to which respondent, by its answer, admitted the issuance of the policy, the payment of the first quarterly premium and the death of assured, in February, 1930, but specifically denied the payment to or receipt by it of any further premium installment, and that on account of which said policy had lapsed; and further alleged as an affirmative defense, that insured, within one year from the date of said policy died by his own act, by intentionally placing himself in front of a rapidly moving train near Truman, Arkansas, about February, 1930; and that it had tendered to plaintiff before the filing of this suit the sum of $ 5.65, the amount of the first and only premium received by it from insured, and further alleged in its answer the validity of the suicide clause in said policy as enunciated by the Supreme Court of the State of Arkansas, in the following cases: New York Life Insurance Co. v. Watters, 154 Ark. 569, 243 S.W. 831; Grand Lodge A. O. U. W. v. Banister, 80 Ark. 190, 96 S.W. 742; Industrial Mutual Ind. Co. v. Watt, 95 Ark. 456, 130 S.W. 532; Home Life Ins. Co. v. Miller, 33 S.W.2d 1102 (Ark. Sup.). And denying liability to plaintiff for any amount, except the $ 5.65, paid as first quarterly premium, which it tendered to plaintiff in court.
At the trial of this case, in the circuit court, the plaintiff offered the policy in evidence, whereupon the defendant, respondent, stated to the court that under the pleadings the defendant had the burden of proof and asked the right to open and close the case, which request was by the court granted, and the policy sued on was offered by defendant. Amongst other things the policy contains the following provisions:
The evidence--Leon C. Blackman, Supervisor of the maintenance of the records for defendant, testified that the records of the company, in his charge, show that one quarterly premium of $ 5.65 only, was paid on the policy of insured. That no further premium was ever paid and that the policy lapsed on November 12, 1929.
The testimony of Clyde Houston and Curtis Hurst, was that they saw insured, Dewey B. Bowdon on the morning of February 5, 1930, leap or jump in front of the Frisco train (the Sunnyland), near Truman, Arkansas, while the train was running at a rapid rate of speed, fifty or sixty miles per hour, and that he was killed outright. They each saw deceased first go near the railroad tracks, stop and look in the direction of the approaching train, until it had appeared within two or three times the distance between the telegraph poles, when he made the leap between the rails and lie down, or throw himself in front of the moving train.
Mrs. Bowdon and John Anten each testified that they had seen nothing unusual in the conduct and demeanor of deceased, immediately prior to his death. Mrs. Bowdon said her husband had not had any troubles, domestic or otherwise, to cause him to take his own life; his family life had been pleasant and she knew of no business trouble that would cause him to do so.
That after her husband's death she went to see a Mr. Kimbrough, who was in charge of respondent's office at Jonesboro, that he told her that her husband's insurance was in force, and made out the proof of death for her, and afterwards reported to her that the company refused to pay the insurance on account of suicide.
Nine members of the jury found for the plaintiff, in the sum of $ 1295, but plaintiff immediately entered a remittitur in the sum of $ 295.
The motion of defendant, for a new trial, asserts several grounds, one of which is "because the verdict of the jury is against the weight of the evidence."
1. "The trial court has a right to grant one new trial to each party on the ground alone that the verdict is against the weight of the evidence, and since this was the first trial of the case it was within the discretion of the trial court to grant plaintiff a new trial, on the ground that the verdict is against the weight of the evidence, when the trial court fails to specify the ground on which it sustained the motion for a new trial, and one of the grounds assigned therein, is that the verdict is against the evidence, the appellate court will presume that the trial court sustained the motion on that ground." [Riche v. City of St. Joseph and Meyer Block, 326 Mo. 691, 32 S.W.2d 578, l. c. 694, 695, 32 S.W. 578; Gray v. City of Hannibal, 29 S.W.2d 710, l. c. 713.]
The weight of the evidence upon the part of defendant clearly preponderates in this case.
2. It is our opinion that the trial court erred in instructing the jury that the evidence relied on by the defendant to establish the defense of suicide, is circumstantial evidence and before you can find for the defendant on this defense, the defendant must establish facts and circumstances by the evidence which excludes any reasonable hypothesis of accidental death, for in such case the law presumes that the insured did not commit suicide, unless the facts and circumstances offered in evidence exclude any reasonable...
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