Castens v. Supreme Lodge Knights & Ladies of Honor
| Decision Date | 06 April 1915 |
| Citation | 175 S.W. 264,190 Mo.App. 57 |
| Parties | HENRY CASTENS, Respondent, v. SUPREME LODGE KNIGHTS & LADIES OF HONOR, Appellant |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. Daniel D. Fisher Judge.
Judgment reversed.
Chas F. Krone and August Walz, Jr., for appellant.
(1) The admitted testimony shows that under the by-laws of the defendant order, the occupation of a bartender was prohibited to those insured and that in engaging therein after he became a member without giving notice and paying increased assessments, all rights of recovery on the benefit certificate were forfeited, without the insured being charged or expelled from the order, while the testimony of both plaintiff and defendant shows that the deceased had entered into that prohibited occupation without giving notice or paying more and was engaged therein at the time of his death by all of which plaintiff was precluded from recovery and it was the duty of the trial court to instruct the jury peremptorily to find for the defendant on all the evidence in the case. Brittenham v. Sovereign Camp, 180 Mo.App. 523; Easter v. Brotherhood, 154 Mo.App. 456; Britt v. W. O. W., 153 Mo.App. 698; Knode v. Modern Woodmen, 171 Mo.App. 377; Day v. Supreme Forrest, 174 Mo.App. 260; Clair v. Supreme Council, 172 Mo.App. 709; Thompson v. Fidelity, 116 Tenn. 557; Schmertz v. U. S. Life Ins. Co., 118 F. 250; Metropolitan v. Walton, 25 Ohio Cir. Ct. R. 587. (2) The admitted testimony shows that under the by-laws of the defendant organization, the suicide of the insured within five years of his becoming a member renders his benefit certificate null and void and prohibits all recovery thereon while the testimony of both plaintiff and defendant shows that he had committed suicide within five years after his becoming a member, by all of which plaintiff was precluded from recovery and it was the duty of the court to instruct the jury peremptorily to find for defendant on all the evidence. Hainline v. Bank, 67 Mo.App. 483; Richey v. Woodmen, 163 Mo.App. 235. (3) While the presumption against suicide is strong it may be overcome by proof and where the reasonable probabilities from the evidence, all point to suicide as the cause of death of a member of a fraternal-beneficial society, so as to leave no room for reasonable controversy on the subject, a jury, in an action on such a certificate, should not be permitted to find to the contrary but the question must be decided by the court. And where the fact of suicide appears from the testimony of plaintiff as well as defendant or where the testimony of plaintiff corroborates that of defendant as to the fact of suicide the appellate court will interfere with the ruling of the trial court and reverse the judgment rendered below. Richey v. Woodmen, 163 Mo.App. 235. (4) Except that there is no presumption against a man entering upon the occupation of a bartender, the same rule applies to members of a fraternal-beneficial organization in engaging in that or any other prohibited occupation. Richey v. Woodmen, 163 Mo.App. 235; Hainline v. Bank, 67 Mo.App. 483.
Robert H. Merryman for respondent.
(1) That plaintiff having established a prima-facie case, the burden of proof was upon defendant to establish its affirmative defenses. That under the practice in this State it is beyond the power of a trial court to direct a verdict in favor of one having the burden of proof. The court might set the verdict aside if it was against the weight of the evidence, and if plaintiff again prevailed, the trial court would be powerless to set it aside. Troll v. Home Club, 161 Mo.App. 722; Keily v. K. of M., 179 Mo.App. 619. (2) The appellate court will decline to interfere with a judgment because the verdict is against the evidence or the weight of the evidence. Garneau v. Herthel, 15 Mo. 192; Stephen v. Metzger, 95 Mo.App. 627; Reid v. Ins. Co., 58 Mo. 429; McCarthy v. Trust Co., 192 Mo. 402. (3) It was a question for the jury whether defendant intentionally shot himself under the facts in this case. Cummings v. Woodmen, 170 Mo.App. 194; Norman v. U. C. T., 163 Mo.App. 183. (4) Occupation means that which principally takes up one's time--one's regular business or employment. Cook v. Phonoharp Co., 163 Ala. 522-523. (5) The question of what was plaintiff's occupation was for the jury, since plaintiff only occasionally helped his father in the saloon. Cook v. Phonoharp Co., 163 Ala. 522-523; Standard Life & Accident Ins. Co. v. Fraser, 76 F. 705.
This is a suit on a certificate of life insurance. Plaintiff recovered and defendant prosecutes the appeal.
Defendant is a fraternal benefit society, and plaintiff is the beneficiary designated in the certificate sued upon. In September, 1905, plaintiff's son, Albert H. Castens, affiliated with defendant order, and the certificate of insurance, in an amount not exceeding $ 1000, here sued upon, was issued to him in favor of his father, plaintiff. Among other things, the contract of insurance provides that if the insured shall, within five years after becoming a member of the order, die by an act of suicide, whether sane or insane at the time of the act, the relief fund certificate of such member shall become null and void and the payment of no part of the sum named therein shall be made.
In its answer, defendant invokes this provision of the contract, and pleads that the insured came to his death by his own act intentionally done--that is, that he committed suicide--and, therefore, no recovery should be allowed. Plaintiff introduced the certificate of insurance in evidence, showed all of the dues and assessments were paid thereon, and that the insured member, Albert H. Castens, his son, died at the age of twenty-three years on the 13th day of November, 1908, which is within five years of the time he became a member of the order. After having thus made a prima-facie case, defendant assumed the burden of defense and introduced an abundance of evidence tending to prove the suicide of the insured as pleaded by it. Among other things, defendant introduced the affidavit of a friend, made part of the proof of death, which recited that the insured came to his death as a result of suicide. However, under instructions given, the jury found the issue for plaintiff--that is, to the effect that Albert H. Castens came to his death from some cause other than suicide--and awarded a verdict for the amount of the insurance.
It is urged the judgment should be reversed because the evidence is conclusive to the effect that the insured came to his death by his own hand from a gunshot wound intentionally inflicted with a view of committing suicide, and that especially is this true in view of the admission contained in the proof of death which is in nowise contradicted or explained. It may be said that there is no evidence whatever in the record tending to show that the insured came to his death from a natural cause, or from accident, except such as attends the situation by virtue of the usual presumptions which obtain in like cases. It is conceded on both sides that he died from a pistol shot in his left breast on the day and date mentioned--that is, November 13, 1908.
It appears that plaintiff owns a roadhouse on the Gravois road near or about the outskirts of the city of St. Louis. He resided there with his family and conducted a dramshop, restaurant, and wagon yard. The insured, Albert H. Castens, plaintiff's son, had given a party at the roadhouse a night or two before, and was, during the while, admonished by his father to desist from drinking too much. The young man, it is said, took umbrage at this and went away, but returned the following afternoon. Shortly after his return and about four o'clock in the afternoon, a pistol shot was heard in the yard, and the insured was found lying at the entrance of a shed with a pistol beside him and a bullet wound in the left breast, from which he died. He was removed by a couple of men under the direction of plaintiff, from the place where he had fallen, into the waiting room of the roadhouse, immediately. The insured was still living at the time and one of those who assisted in removing him into the building, Mr. Stumpf, said he talked to his father about being sorry about killing himself. "He said he was sorry he tried to kill himself; that is all I paid any attention to." Dr. William Baron, who was called in forthwith and administered treatment to the young man said: The patient was removed to St. Mary's Hospital on the advice of Dr. Baron, and Dr. Rassieur was called in attendance as well. Dr. Rassieur, testifying from his minutes, made at the time while standing at the bedside of the patient, probably two hours after the shot was fired, said the young man stated to him in substance that he shot himself in a fit of alcoholic depression. At the time, he was still conscious, but died suddenly an hour or two later, between eight and nine o'clock the same evening. The young man told Dr. Rassieur, according to his testimony, that he had been drinking, and the doctor said he was run down from drink.
In rebuttal, a police officer testified for plaintiff that he was present at the hospital all of the time except about fifteen minutes when Dr. Rassieur was with the patient, and that he heard the insured make no statement to the doctor to the effect that he had shot himself. Furthermore, in rebuttal, plaintiff testified that he did not know whether his son shot himself or not, but detailed...
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