Griffith v. Continental Casualty Co.

• Decision Date: 02 July 1923
• Docket Number: No. 23756.,23756.
• Citation: 253 S.W. 1043,299 Mo. 426
• Parties: GRIFFITH v. CONTINENTAL CASUALTY CO.
• Court: Missouri Supreme Court

253 S.W. 1043

299 Mo. 426

GRIFFITH v. CONTINENTAL CASUALTY CO.

No. 23756.

Supreme Court of Missouri, in Banc.

July 2, 1923.

Appeal from St. Louis Circuit Court; H. A. Hamilton, Fudge.

Action by Louise M. Griffith against the Continental Casualty Company. Judgment for plaintiff in an amount less than petitioned for, and she appeals. Affirmed.

Kinealy & Kinealy, of St. Louis, for appellant.

Jones, Hooker. Sullivan & Angert, of St. Louis, for respondent.

RAGLAND, J.

This is the second appeal in this case. 290 Mo. 455, 235 S. W. 83. It is a suit on a policy of insurance issued by defendant, whereby it, among other things, insured Harry C. Griffith against death suffered through personal bodily injury effected directly and independently of all other "causes through external, violent, and purely accidental means. It contained, however, this stipulation:

"If the insured shall sustain loss of life by suicide or self-destruction, while either sane "or insane, and such loss of life shall result within ninety days of the injury causing it, the company will pay one-tenth of the principal sum."

The policy is dated July 8, 1910, and, by reason of accumulations therein provided for, through annual renewals, the amount payable under It in 1919, in case of the insured's death through accidental means, was $15,000. The plaintiff is the beneficiary named therein.

The cause was tried on the same pleadings as in the former trial. The petition, after alleging the execution of the policy and its provisions as above indicated, except that It made no reference to the stipulation relating to suicide, stated:

"That thereafter on the 21st day of April, 1919, the said Harry C. Griffith received personal bodily injury, effected directly and independently of all other causes through external, violent, and purely accidental means, by accidentally falling out of a window of a room on the second floor of the St. Louis Baptist Hospital * * * to the ground beneath, whereby * * * he suffered concussion and hemorrhage of the brain, and that, as a direct result of his said injuries, the said Harry C. Griffith died on April 22, 1919."

The petition further charged a vexatious refusal to pay, and prayed judgment for damages and attorney's fees in addition to the said sum of $15,000.

The answer admitted the execution of the policy, in the terms and of the tenor alleged, and the death of Griffith, but denied the other allegations of the petition. It further averred that the death of Griffith was due to suicide and self-destruction, that the policy stipulated that in such event the defendant's liability should be $1,500 and no more, and that it brought into court and thereby tendered that sum. Plaintiff filed a general denial by way of reply.

The facts in proof are substantially the same as on the former trial. The plaintiff in this trial, however, contented herself with raising the curtain on the scene disclosing the insured's fall at the stage where he was seen hanging from the hospital window, head downward, with a nurse holding him by one foot, leaving it to defendant to show, if it chose, the circumstances immediately preceding whereby the insured got himself into such a dilemma.

Her evidence in chief tended to show the following: Griffith, the insured, was in the employ of the Anderson Grocery Company of St. Louis, and engaged in the performance of office duties. He was about 50 years of age, a small, thin built man, with sallow complexion. He was not talkative and was particularly reticent about his own affairs. Seven or eight years prior to his death he had been discharged in bankruptcy, and after that time had had no financial difficulties. Neither his wife nor his business associates had ever noticed any despondency on his part, nor had they ever heard him say anything about killing himself or committing suicide. On April 16, 1919, he suffered a gunshot wound; the bullet entering near the left mammary nipple and passing through his body. He was taken to the City Hospital, and during the time he remained there he was strapped to his cot. On April 19th, he was removed to the Baptist Hospital and put in a small room known as No.18. There was a window in the north side near the west wall of the room and a door in the south side, somewhat east of the center. Along the west wall and about 2 feet south of the window in the north side there was a radiator. The bed was placed between the door and the window, with the head against the west wall. The window sill was 2 feet from the floor and was 20 inches in width from inside to outside. The window itself was 2 feet and 10 inches wide. From the sill to the top of the bottom sash was 3 feet, 2½ inches; from the sill to the street surface below the distance was 18 feet.

On the night of April 20th, about 12:30 a. m., two young men, Harrison and Zoller, were passing along the street near the hospital when they heard an indistinct cry for help. They looked toward the hospital and saw something hanging from a second story window which appeared to be bed clothing, but which, on closer inspection, proved to be a man hanging with his head down. They ran toward the place and as they got closer they saw that the man's entire body was out of the window except his Left foot and ankle, by which he was being held by a nurse; his back was against the wall and he was turning first one way and then the other and pushing up and reaching out with both hands. His apparent struggles had ceased, however, and he was hanging perfectly limp when they reached the place. Presently the nurse let go of him, and he fell to the ground, his head striking a cellar door. The man who had fallen was Griffith, the insured; he was carried back into the hospital, put to bed and strapped to his cot. On April 22d he died. The autopsy disclosed that the immediate cause of his death was hemorrhage of the brain. It also disclosed that his left lung at the apex and the upper and lower lobes of the right lung were tubercular, and that both were bound down by chronic adhesions.

The following excerpts from the testimony of defendant's witnesses epitomize the evidence offered by it for the purpose of showing that the death of the insured was not effected through accidental means:

Ella Diehl:

"I was Mr. Griffith's stenographer and had been for about a year. He usually went to lunch, I guess, about 12. On the 16th of April referred to he did not go to lunch. He just passed a remark to me that he was feeling rotten. About 2 o'clock he called me and asked me if I had an oil can, and I saw he had a revolver lying there, and I got the oil can. I had seen the revolver there before and that didn't alarm me, and so I gave the oil can to him and went away from his desk. A little while after he called me to take the oil can away and said, `The trigger won't work.' I said, `You ought to take that thing away and oughtn't to have that down at the office.' He didn't answer, and I started to go away, and just as I turned around I heard the revolver. I noticed I didn't take more than about three in a revolving chair. He was sitting sort of hunched over with his feet under his desk. The gun was on the edge of his desk with the muzzle towards him. It was just about directly in front of him. When I heard the report and turned he was just keeling back in his chair. He made no outcry at all, and was smoking a cigar. When I turned around he had a cigar clenched in his teeth. I immediately left the office."

Mrs. Minnie Williamson:

"I have been a nurse at the St. Louis Baptist Hospital for eighteen months and was on April of last year. I was head nurse in the little surgical division on the third floor. I received Harry C. Griffith. He went out of the window the second day he was there. Mrs. Griffith came to the hospital with him. I had the care of him in the daytime. I fed him and bathed him and made him comfortable. He was very emaciated. His wound seemed to progress satisfactorily. I had conversations with Mr. Griffith several different times. When I went to give him his bath he told me to be careful. He said, `I have a wound in my side, a gunshot wound.' I said, `An accident, I suppose,' and he said, `Well, any one in my condition would be better off dead.' That is the first conversation he held with me. At times, when I would feed him, he would say he would be better off dead. He didn't seem cheerful to me. Just when I went to feed him he would always complain of feeling so badly and he would be better off dead. After he went out of the window I had very little conversation with him. I came on duty 7 o'clock the next morning and went to this room 18 as soon as I came en duty. The lower window sash was up about a little over half way I should judge. I closed it. During the day he said very little. He would just ask me for what he " wanted. I didn't ask him how he came to get out of the window, and he didn't tell me. He had been tied in the bed, and he was practically untied, and I and Mr. Carney tied him over again."

Mrs. Sidney Bonham:

"In April 1919, I was a nurse at the St. Louis Baptist Hospital. I knew Harry C. Griffith as a patient there. He was in room 18 on Sunday night, April 20th. I was working on the floor opposite Mr. Griffith's room. * * * As I passed his door I noticed it was closed, and I opened it, and he was seated in front of the window with his feet on the window sill and his back towards the door. He was smoking, and I asked him what he was doing up, and he said smoking. I insisted on his going back to bed, and he said, `Go on out and close the door; there's a devil of a draft on me.' I said I realized that but I said, `You will have to go back to bed,' and he raised up and stood facing me, and I asked him again to go back to bed, and he refused, and I started over to him, and he sat down on the window sill and bent over towards the right and went out of the window. I hollered to him and grabbed him by the bath robe. I saw...