Brunswick v. Standard Acc. Ins. Co., 19764.

CourtUnited States State Supreme Court of Missouri
Writing for the CourtFaris
Citation213 S.W. 45,278 Mo. 154
Docket NumberNo. 19764.,19764.
Decision Date16 May 1919

Appeal from St. Louis Circuit Court; James E. Withrow, Judge.

Action by Pauline Brunswick against the Standard Accident Insurance Company. From judgment for defendant, plaintiff appealed to St. Louis Court of Appeals, from which the case was transferred to the Supreme Court (195 Mo. App. 651, 187 S. W. 802). Reversed and remanded.

Emerson E. Schnepp, Otto F. Karbe, and Taylor & Mayer, all of St. Louis, for appellant.

Anderson, Gilbert & Hayden and M. W. Hayden, all of St. Louis, for respondent.


This is an action by plaintiff as beneficiary on a policy of insurance issued by defendant, insuring one William Brunswick, the husband of plaintiff, against death by accident. Upon a trial by a jury, the verdict was for the defendant. From the resulting judgment plaintiff appealed to the St. Louis Court of Appeals, wherein, upon a hearing, the case was reversed for error and ordered remanded for a new trial. See Brunswick v. Standard Accident Ins. Co., 195 Mo. App. 651, 187 S. W. 802. The Court of Appeals, however, being of the opinion that the views announced by them in this case were in conflict with the opinion of the Springfield Court of Appeals in the case of Scales v. National, etc., Ins. Co., 186 S. W. 948, made an order transferring the case to this court, pursuant to the mandate of the Constitution. Hence our jurisdiction.

The petition seems to be conventional. After averring formally the issuance of the policy, the petition sets out substantially the conditions of the policy under which the liability of defendant for accidental death of the assured shall accrue. These conditions, as the petition and the policy recite them are that liability accrues in the event of the death of assured "resulting directly, exclusively, and independently of all other causes from accidental bodily injuries." The Valley contains, following the above-quoted conditions, as to the cause of death, an exception, to wit, "Except when self-inflicted while insane," which is not set out, or in any wise referred to, in the petition. Continuing, the petition avers that assured died on the 22d day of April, 1913, and that his death resulted "directly, exclusively, and independently of all other causes from accidental bodily injuries from and caused by the said William Brunswick taking on said day poison known as cyanide of potassium." Other allegation are made as to additional increments to the principal sum of $2,500, arising, it is averred, from annual renewals of the policy, and as to damages and attorney's fees accruing from an alleged vexatious refusal to pay. But these have no pertinence to the points vexing us upon this appeal.

The answer of defendant, so far also as it is pertinent to the questions mooted here, was an admission of the issuance of the policy and of the several annual renewals thereof as pleaded, and a general denial of each and every allegation (sic) contained in the petition.

The facts immediately surrounding the death of assured are meager, but so far as these facts are shown, and so far as they are pertinent to elucidate the questions mooted on this appeal, run substantially thus: Assured on the morning of his death seemed to be in the best of health. He ate his breakfast just before 8 o'clock in the morning, and apparently was preparing to go to his work. After breakfast he went into the bedroom of plaintiff, who seems to have been ill, and the latter tied his necktie for him. He then went into a bedroom adjoining that of plaintiff. Some five minutes afterward, hearing an unusual noise from this room, plaintiff entered it and found assured lying on the bed in a dying condition. His necktie and collar had been removed. There were burns on his mouth and cheek and hand, the latter seemingly from having wiped his mouth with his hand. A glass and spoon were found on the floor near the bed on which assured was lying. While in this bedroom, and a few minutes before he was found dying, he was seen folding a handkerchief. In a handkerchief which was found in his pocket after his death were found some two or three ounces of cyanide of potassium. A can containing some two-thirds of a pound of cyanide of potassium was found in the bathroom.

The coroner, who was a physician, examined the body of assured some two hours after his death, and from the symptoms and the history of the case testified that assured came to his death from cyanide of potassium poisoning. The finding of the coroner's inquest that assured came to his death by suicide, caused by swallowing cyanide of potassium, was offered by plaintiff, but excluded by the trial court on defendant's objection. It will be necessary to state other and omitted facts in the course of the discussion of the points made by plaintiff. These will be set out in connection with the point to which they are apposite.

I. Plaintiff insists that the verdict is against the evidence. This contention is bottomed on the fact that the contract of insurance contained a provision substantially to the effect that if assured came to his death by suicide, while either sane or insane, the company would pay the beneficiary one-tenth of the principal sum; that is to say, $250. So, it is urged, since the death of the assured was unquestionably due either to accident or suicide, the verdict ought, in any event, to have been for at least the sum of $250.

It is enough to say upon this contention that the case was not tried below upon any such theory. Neither the pleadings upon either side, nor the instruction, nor the evidence, except the policy, contain the word "suicide," and the policy has it only in the clause whereon the alleged right is bottomed to recover the lesser sum above mentioned. Even in these days when the leaven of reform is working in all the law and the strife is toward a legal millenium, whereat every man shall be his own lawyer, one may not yet sue and cause the jury to be instructed upon one cause of action, and, then, when cast, urge error, for that he was not permitted to recover upon a wholly different theory, and upon a wholly different cause of action, which he did not see fit even to mention till he came up to the appellate court. The rule which forbids this practice is that which requires the appellant to try his case in the appellate forum on the same theory upon which he tried it below. Paramore v. Campbell, 245 Mo. 287, 149 S. W. 6; Linn County Bank v. Clifton, 263 Mo. 200, 172 S. W. 388.

II. Complaint is made by plaintiff of the following instruction given for the defendant, to wit:

"You are instructed that, even though you may find from the evidence that William Brunswick took cyanide of potassium on the day of his death, and even though you may further find that his death was caused thereby, there is still no presumption in law that his act in taking said poison, if you find that be did take it, was accidental, or that his death resulted from accidental bodily injuries. On the contrary, the burden is upon plaintiff to prove that the death of said William Brunswick resulted, independently of all other causes, from accidental bodily injuries; and unless she has proved such fact she cannot' recover, and your verdict must be for the defendant."

In condemnation of the above instruction urges (a) that it substantially tells the jury that death by suicide is not an accident; (b) that the burden was upon plaintiff to prove that the death of assured was caused by an accident; and (c) that, if the jury should find that assured's death was caused by poison, no presumption exists that such poison was taken accidentally. Taking the converse of each of the above plaintiff strenuously urges that above instruction was erroneous as to all of them.

In resolving these contentions it is necessary to re-examine the facts, cursorily at least. By these facts we think the cause of assured's death is fairly well settled; for, while the evidence is upon some vexing points utterly lacking, we are yet convinced enough is shown to justify a finding by the triers of fact that assured came to his death from taking poison, whether accidentally or intentionally swallowed in another question and one presently reserved. For in addition to his sudden death and the burns upon his mouth, face, and hand, which some of the witnesses say are characteristic effects of cyanide of potassium, crystals of this drug were found in a handkerchief in his pocket, and a can containing a large quantity thereof was found upon the premises A few minutes before the death of assured he was seen to fold up a handkerchief, and, as stated, in a handkerchief after his death some two or three ounces of cyanide of potassium were found. A glass and spoon were found upon the floor near his body, which lay upon the bed, but whether containing evidences of recent use does not appear. The coroner, who is a physician, saw and examined the body of assured some two hours after his death, and as a result of that examination and the history of the swore unequivocally that death was caused by cyanide of potassium poisoning. So, we think the postulate of fact in the instruction was fully warranted by the evidence in the case, which clearly tended to that the death of deceased was caused by his swallowing cyanide of potassium.

The obvious inference arises, and in fact the testimony shows, that assured was fully cognizant of the deadly nature of cyanide of potassium; for the testimony is that only a few days before his death he had taken from his pocket crystals of some drug, in exhibiting these crystals to his partner in business had stated in substance that was cyanide of potassium and a deadly poison. No reason whatever for suicide is disclosed by the record; neither, on the other hand, are there any facts in evidence making for the theory of accidental taking this poison. The assured is not...

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