Brooks v. Travelers Ins. Co.

• Decision Date: 04 November 1974
• Docket Number: No. KCD,KCD
• Citation: 515 S.W.2d 821
• Parties: Irva Joanne BROOKS (Gregory), Appellant, v. The TRAVELERS INSURANCE COMPANY, Respondent. 26606.
• Court: Missouri Court of Appeals

Page 821

515 S.W.2d 821

Irva Joanne BROOKS (Gregory), Appellant, v. The TRAVELERS INSURANCE COMPANY, Respondent.

No. KCD 26606.

Missouri Court of Appeals, Kansas City District.

Nov. 4, 1974.

Gilbert R. Titus and Gary R. Titus, Independence, for appellant.

James W. Benjamin and John C. Cozad, Kansas City, for respondent; Rogers, Field, Gentry, Benjamin & Robertson, Kansas City, of counsel.

Before DIXON, C.J., and SHANGLER, PRITCHANRD, WASSERSTROM, SWOFFORD, SOMERVILLE and TURNAGE, JJ.

PRITCHARD, Judge.

This is an action by appellant to recover, as beneficiary, on a $20,000.00 accidental death policy issued by respondent on November, 1, 1969. Robert L. Brooks was the named insured. On January 24, 1971, he died as a result of a self-inflicted gunshot wound to his head. The policy contained this exclusion: 'The insurance under this part shall not cover any loss . . . (3) resulting from suicide or any attempt thereat (sanc) . . .' At the trial the sole issue was whether or not Mr. Brooks was insane at the time he took his own life, which issue was resolved by the jury against appellant in its verdict for respondent.

Appellant claims that the trial court erred in excluding the opinions of two lay witnesses as to the mental state of Mr. Brooks. The first witness was Patrolman David Cosner of the Independence Police Department. He stopped Mr. Brooks for running a red light on Walnut Street in Independence about December 17, 1970. He chased Mr. Brooks for about 7 blocks before he stopped. Upon being told to stay in his car, Mr. Brooks told Cosner as to why he had not stopped, 'that he had no way of knowing who I was behind him, and that I might be someone who was after him. Q Did he make any statement at all about who he thought that someone might be? A He made numerous statements from the time I had him stopped in reference to Communists. He stated that they were all around, if I knew how many were in this town, I would be worried, too, about who was following me.' Cosner observed a piece of wood protruding underneath the driver's seat, and he asked Mr. Brooks why he was carrying that object. 'He stated words to the effect that if you had people following you that were trying to kill your little girl, you'd carry this for protection. When I asked him who these people were, he again referred to Communist sources.' The piece of wood was a table or chair leg approximately two and a half to three feet long. 'Q Did he make any other statements to you about anyone during the time you were talking to him, either at the scene or at headquarters? A The entire--almost the entire time I was speaking to him at the scene he was crying outwardly, tears were running down his face, and he seemed quite excited. He made reference to numerous vehicles going by and stating this was a Communist, that was a Communist. One police car went by during this time, and he stated that was probably a Communist, too; that if J. Edgar Hoover was doing his job, he wouldn't need to be carrying weapons in his car. Q And did you book him there for carrying concealed weapons? A Yes, sir. Q Is there anything else that he said or did that caused you to think it was unusual? A Constant references to his family, and how he was worried about the well-being of his family, that there was a plot to get them. Q And was there anybody else that he thought was plotting to get him or his family, other than the Communists? A I don't remember any reference to such. He also repeatedly had to be warned about grabbing me by the lapels of the coat; when he would say these things and point, he would grab me by the lapels and he had to be warned to restrain himself.' Upon cross-examination, Cosner testified as to the contents of his written report, relating to the wooden furniture leg: 'Upon questioning Mr. Brooks in regard to the item, he stated, 'That's my nigger killer,' and also, 'I'll use that damn club, too. " On redirect examination Cosner was asked: 'Q Officer, based on your observation of Mr. Brooks there that night and all the conversation that you had with him and the remarks that he made to you and your physical observation of him, do you have an opinion whether or not this man was sane or insane? MR. BENJAMIN: Just a moment. Your Honor, I don't believe this witness has been qualified as an expert witness and I must object to him invading the province of the jury on the ultimate issue with a non-expert witness. THE COURT: Objection sustained.' The same objection was sustained as to whether Mr. Brooks acted as a normal individual.

The second witness whose testimony as to the sanity was excluded by the court was Mr. Edmund R. Lipowicz, II, an attorney. Mr. Brooks came to see him around the first part of January, 1971, concerning representing him on two charges in the Independence Municipal Court. Mr. Lipowicz checked and found only one pending charge--that of carrying a concealed weapon. He discussed that charge with Mr. Brooks at length on perhaps three or four different occasions in his office. Mr Brooks explained the charge of carrying a concealed weapon that he had a club of some type in his car continuously to protect himself against Communists. 'He had some fear of the fact that the Communists were infiltrating the government, that they were about to do bodily harm to both he, his wife, and his family, and he was...