Fricke v. General Accident, Fire & Life Assur. Corp.

• Decision Date: 08 August 1932
• Docket Number: No. 9308.,9308.
• Citation: 59 F.2d 563
• Parties: FRICKE v. GENERAL ACCIDENT, FIRE & LIFE ASSUR. CORPORATION, Limited.
• Court: U.S. Court of Appeals — Eighth Circuit

59 F.2d 563 (1932)

FRICKE v. GENERAL ACCIDENT, FIRE & LIFE ASSUR. CORPORATION, Limited.

No. 9308.

Circuit Court of Appeals, Eighth Circuit.

May 5, 1932.

Rehearing Denied August 8, 1932.

Harry G. Kyle, of Kansas City, Mo. (Walter A. Raymond, of Kansas City, Mo., on the brief), for appellant.

Leslie A. Welch, of Kansas City, Mo. (Thomas Hackney, Guy M. Cowgill, and Arthur C. Popham, all of Kansas City, Mo., on the brief), for appellee.

Before STONE and BOOTH, Circuit Judges, and WYMAN, District Judge.

WYMAN, District Judge.

This is an appeal from a judgment of the United States District Court for the Western District of Missouri, in an action upon an accident insurance policy. The suit was instituted by appellant, as plaintiff below, in the state circuit court of Jackson county, Mo., and thereafter, upon petition of appellee, defendant below, setting forth the jurisdictional requisites as to diversity of citizenship and amount involved, was removed to the federal court.

The complaint, after averring the appointment and qualification of the plaintiff as the administrator of the estate of Louis E. Riddle, deceased, the corporate existence of the defendant, the execution and delivery of the policy in suit, copy of which is marked as an exhibit and attached to the complaint, among other things, alleges in substance:

That on February 11, 1930, while said policy of insurance was in full force and effect, said Louis E. Riddle died from accidental bodily injuries caused by a pistol shot fired by himself while he was a passenger on a street car, which was a public conveyance operated by the Kansas City Public Service Company, as a common carrier for passenger service. That the cause of death was suicide committed while Louis E. Riddle was mentally unbalanced and his reasoning faculties so impaired by physical and mental disease that he was unable to understand the moral character of said act, or to distinguish between right and wrong, and mentally incapable of controlling his conduct rationally and was impelled to said act by an irrational impulse. That by reason of the death of the said Louis E. Riddle in the manner aforesaid, there was due and owing to the plaintiff from the defendant insurance company the sum of $15,000, as double indemnity pursuant to the terms of said policy. The complaint also alleges the furnishing of proof of loss and the demand upon the company for payment and the failure and refusal to pay.

The defendant company, by its answer, admits the execution and delivery of the policy, but specifically denies that the injuries to, and death of, said Riddle were effected directly and independently of all other causes through accidental means.

The issue thus presented was tried to a jury and resulted in a verdict in favor of the defendant insurance company, and from the judgment entered upon said verdict the plaintiff has appealed to this court.

There are numerous assignments of error, nine of which are specified in the brief and apparently relied upon by appellant, but with the single exception of assignment of error No. 3, there appears to be nothing in the bill of exceptions which could furnish a basis for any of such assignments. As stated by this court in Brown Sheet Iron & Steel Co. v. Willcuts, 45 F.(2d) 390: "It is true there are a number of assignments of error relating to such questions, but assignments of error cannot and are not intended to fill the place of the usual and proper steps taken in the course of a trial to call the attention of the trial court to alleged error, as, for example, objections touching the introduction of evidence; motion for judgment in favor of one party on the ground that the evidence will not support a judgment for the opposing party; and other similar steps. Assignments of error touching such matters are of no avail, unless they have for their foundation some such proper prior step taken at the trial."

Assignment of error No. 3, which is supported in the bill of exceptions by proper exception to the ruling complained of, presents for review the action of the trial court in permitting Dr. Robinson, who was called and...