Gilpin v. Aetna Life Ins. Co.

• Decision Date: 03 July 1939
• Citation: 132 S.W.2d 686,234 Mo.App. 566
• Parties: GERALDINE GILPIN, RESPONDENT, v. AETNA LIFE INSURANCE COMPANY, APPELLANT
• Court: Kansas Court of Appeals

132 S.W.2d 686

234 Mo.App. 566

GERALDINE GILPIN, RESPONDENT, v. AETNA LIFE INSURANCE COMPANY, APPELLANT

Court of Appeals of Missouri, Kansas City

July 3, 1939

Appeal from Jackson Circuit Court.--Hon. Albert A. Ridge, Judge.

AFFIRMED.

Judgment affirmed.

Morrison Nugent, Berger, Byers & Johns, Chas. C. Byers and Robert L Hecker for appellant.

(1) The court erred in refusing to give defendant's instruction in the nature of a demurrer to the evidence directing a verdict in favor of the defendant, offered and requested by it at the close of all the evidence in the case, for the reason that plaintiff did not make out a submissible case of accidental death, the undisputed evidence showing that the insured's death was caused by suicide. (a) The presumptions of accident from violent death and against suicide are rebuttable and there is no submissible case for the jury if the facts disprove them. State ex rel. Bowdon v. Allen et al., 337 Mo. 260, 85 S.W.2d 63; Richey v. Woodmen of the World, 163 Mo.App. 235, 146 S.W. 461; Turner v. Nat. Benevolent Society, 224 Mo.App. 463 28 S.W.2d 125, l. c. 126; Ross v. St. Louis Dairy Co. et al., 399 Mo. 982, 98 S.W.2d 717; Brunswick v. Standard Accident Ins. Co., 278 Mo. 154, 213 S.W. 45; Mut. Benefit Health & Accident Ass'n. v. Denton, 124 S.W.2d 278; McDaniel v. Met. Life Ins. Co. (W. Va.), 195 S.E. 597; Bayles v. Jefferson Standard Life Ins. Co. (La. App.), 148 So. 465; Voelkel v. Supreme Tent, etc., 116 Wis. 202, 92 N.W. 1104; Agen v. Met. Life Ins. Co., 105 Wis. 217, 80 N.W. 1020; Smith v. Met. Life Ins. Co. (Mo. App.), 107 S.W.2d 808. (b) In a case where it is necessary to pile inference on inference to establish a necessary fact and indulge in speculation there is nothing to submit to a jury and a verdict based thereon is improper. Harding v. Federal Life Ins. Co. (Mo. App.), 34 S.W.2d 198; Phillips v. Travelers Ins. Co., 288 Mo. 175, 231 S.W. 947. (c) A case depending on testimony contrary to physical facts should not be submitted to a jury, much less a case depending on a presumption contrary to such facts and a verdict in such a case should not be permitted to stand. Sexton v. Met. St. Ry. Co., 245 Mo. 254, 149 S.W. 21; Lange v. Met. St. Ry. Co., 151 Mo.App. 500, 132 S.W. 31; Tate v. M.-K.-T. Ry. Co. (Mo.), 93 S.W.2d 873; Carner v. St. Louis-San Francisco Ry. Co., 338 Mo. 257, 89 S.W.2d 947. (2) It was error for the trial court to give plaintiff's Instruction 3 in which the burden of proof as to suicide was cast on the defendant and this error was not corrected or rectified by the purported or attempted withdrawal of said instruction after the instructions had been read to the jury, counsel had made their arguments and the jury deliberated over two hours without the court at the time of such withdrawal informing or instructing the jury in any way as to what had been done and without giving the defendant an opportunity to re-argue the case. (a) The burden of proof in this case was on the plaintiff and it was improper to instruct the jury that the burden of proving suicide was on the defendant. Basham v. Prudential Ins. Co. of America (Mo. App.), 113 S.W.2d 126; Griffith v. Continental Cas. Co., 290 Mo. 455, 235 S.W. 83; Griffith v. Continental Cas. Co., 299 Mo. 426, 253 S.W. 1043. (b) The error in giving Instruction 3 was not corrected or rectified by the purported or attempted withdrawal of said instruction after the instructions had been read to the jury, the arguments made, and the jury deliberated for more than two hours without the jury being informed as to what instruction had been withdrawn and defendant given an opportunity to re-argue the case. 1 Hout's Mo. Pleading and Practice, Chap. 12, sec. 346, p. 604; Sec. 967, R. S. Mo., 1929; 64 C. J., "Trial", sec. 776, p. 1007; New Albany Woolen Mills v. Meyers & Co., 43 Mo.App. 124; Carroll v. Wiggains (Mo. App.), 199 S.W. 280; Wilmott v. Corrigan Consolidated St. Ry. Co., 106 Mo. 535, 17 S.W. 490; Boyd v. Pennewell (Mo. App.), 78 S.W.2d 456; Glaspell v. Northern P. R. Co., 43 F. 900; United States v. Pierce, 13 F.Supp. 301; Republic Ins. Co. v. Hale (Tex. App.), 99 S.W.2d 909; Mattox v. United States, 146 U.S. 140, 36 L.Ed. 917; Leroy & W. Ry. Co. v. Anderson, 41 Kan. 528, 21 P. 588; 46 C. J., "New Trial," sec. 379, p. 358; 2 C. J., Secundum, "Affidavits", sec. 16b (1), p. 952. (3) Plaintiff's Instruction No. 1, submitting the whole case, was erroneous in that it submitted questions of law to the jury by referring the policy to them for consideration, commented on the evidence by stating what the evidence showed, and was misleading and confusing in form. O'Ferrall v. Met. Life Ins. Co. (Mo. App.), 121 S.W.2d 304; Young v. M.-K.-T. R. Co. (Mo.), 100 S.W.2d 929; Keith v. Kansas City (Mo. App.), 118 S.W.2d 513. (4) Defendant's offered Exhibit "J", being a record of the Alfred Benjamin dispensary pertaining to the insured and giving the dates of his treatments, and Exhibit "K" being a statement by the insured regarding his condition, were improperly excluded on the ground that they were privileged. (a) The matter contained in said exhibits was not privileged. Sec. 1731, R. S. Mo., 1929; 70 C. J., "Witnesses", sec. 601, p. 446. (b) Plaintiff did not meet the burden of showing that any privilege existed to said exhibits. Vermillion v. Prudential Ins. Co., 230 Mo.App. 933, 93 S.W.2d 45. (c) Any privilege that might have existed as to said exhibits was waived. Carrington v. City of St. Louis, 89 Mo. 208, 1 S.W. 240; Blankenbaker v. St. Louis & S. F. R. Co. (Mo.), 187 S.W. 840. (5) The exclusion of defendant's offered Exhibit D, the official death certificate, was error. Simpson v. Wells, 292 Mo. 301, 237 S.W. 520; Griffith v. Continental Cas. Co., 299 Mo. 426, 253 S.W. 1043; Basham v. Prudential Ins. Co. of American (Mo. App.), 113 S.W.2d 126.

Allan R. Browne and Wilbur B. Ennis for respondent.

(1) Respondent presented a submissible case for the jury by introducing the policy and showing compliance with its terms and death resulting from a violent injury under the circumstances in evidence. Klinginsmith v. Mutual (Mo. App.), 64 S.W.2d 705; Smith v. Metropolitan (Mo. App.), 107 S.W.2d 808. (a) Under the facts in this case, the presumption of an accident from a violent death and the presumption against suicide are in no way rebutted, so that the issue of the accident or suicide is a matter for the jury's determination. Bell v. Kansas City (Mo. App.), 71 S.W.2d 135; State ex rel. v. Haid (Mo.), 28 S.W.2d 97; Brunswick v. Standard (Mo.), 213 S.W. 45; Basham v. Prudential, 113 S.W.2d 126; Parker v. Aetna, 232 S.W. 708; Phillips v. Travelers, 231 S.W. 947. (2) There was no prejudicial error involved in connection with the giving and withdrawing of plaintiff's Instruction 3 on the bruden of proof as to suicide, since the instruction, whether correct or incorrect, was withdrawn from the jury, and the matter of withdrawal was not objected to by appellant, and the effort of respondent to instruct the jury on the subject was blocked by the objection of the appellant, no request being made by appellant, furthermore, for a re-arguing of the case. (a) It has been held that the burden of proving the affirmative defense of suicide is on the party asserting it. Kahn v. Metropolitan, 240 S.W. 703; Andrus v. Business (Mo.), 223 S.W. 70; Reynolds v. Maryland (Mo.), 201 S.W. 1128. (3) Instruction I was a correct statement of the law, did not submit questions of law to the jury nor refer to the policy for decisions of law as to the policy, nor did it comment on the evidence by stating what the evidence showed and was not misleading nor confusing, but contained necessary guard words so that appellant could not complain that the instruction gave the jury a roving commission or assumed facts as true or commented on the evidence. Good v. M. K. T. (Mo.), 97 S.W.2d 612; Keith v. Kansas City, 118 S.W.2d 513, l. c. 515. (4) Exhibit "D", designated a death certificate, was inadmissible as not lawfully made, as privileged, and as containing conclusions, and as self-serving. The offer of the court to admit it for appellant without the conclusions was rejected by the appellant, so that it cannot complain of that portion being omitted. O'Donnell v. Wells (Mo.), 21 S.W.2d 765; Schmidt v. Supreme, 207 S.W. 874; Patrick v. Employers, 118 S.W.2d 116.

OPINION

BLAND, J.

This is an action upon a life insurance policy, in the sum of $ 2000, issued by the defendant upon the life of insured, Wilber E. Gilpin and, in which plaintiff, the wife of the insured, is named as beneficiary.

The policy contained a double indemnity provision, providing for the payment of an additional $ 2000, if insured's death resulted directly and independently of all other causes from bodily injuries effected solely through external, violent and accidental means, etc., providing such death did not result from suicide while sane or insane. There was a verdict and judgment in favor of plaintiff in the sum of $ 2090 and defendant has appealed.

On August 22, 1936, the insured, Wilber E. Gilpin, died from a gunshot wound that day made in his head. Proof of death was made by the plaintiff under the life insurance provision of the policy and the sum of $ 2000 was paid to her and the policy surrendered by her to the defendant. No other claim was made under the policy at that time but, about a year later, plaintiff made an additional claim under the double indemnity provision in the policy. Defendant denied liability under that provision, resulting in this suit.

The main issue at the trial was whether deceased died as a result of suicide or accident.

The facts show that deceased left home, in Kansas City, in his automobile about 9:00 A. M., of August 22, 1936, stating to the plaintiff that he was going to take a...