Landau v. Pacific Mutual Life Ins. Company

• Decision Date: 18 December 1924
• Docket Number: 23289
• Citation: 267 S.W. 370,305 Mo. 542
• Parties: AMELIA CORINNE LANDAU v. PACIFIC MUTUAL LIFE INSURANCE COMPANY, Appellant
• Court: Missouri Supreme Court

267 S.W. 370

305 Mo. 542

AMELIA CORINNE LANDAU v. PACIFIC MUTUAL LIFE INSURANCE COMPANY, Appellant

No. 23289

Supreme Court of Missouri

December 18, 1924

Motion for Rehearing Denied December 18, 1924.

Appeal from Lincoln Circuit Court; Hon. Edgar B. Woolfolk Judge.

Reversed and remanded.

Creech & Penn and Jones, Hocker, Sullivan & Angert for appellant.

(1) The plaintiff failed to sustain the burden of proving that the death of the insured was accidental, and the trial court should have directed a verdict for the amount stipulated to be paid in case of suicide. (2) It is error to instruct the jury in an action upon a policy of accident insurance, that the burden of proof is upon the defendant to establish suicide. Brunswick v. Standard Accident Ins. Co., 278 Mo. 166; Laessig v. Insurance Co., 169 Mo. 280; Griffith v. Continental Casualty Co., 290 Mo. 455. (3) Presumptions are not evidence; and it is error to instruct the jury, in an action on a policy of accident insurance, that there is a presumption against suicide. Brunswick v. Standard Accident Insurance Co., 278 Mo. 173; Prentiss v. Illinois Life Insurance Co., 225 S.W. 695; Griffith v. Continental Casualty Co., 235 S.W. 83; 290 Mo. 455; Sacksberger v Grand Lodge, 73 Mo.App. 38. (4) The giving of an erroneous instruction on behalf of the plaintiff is not cured by the giving of a correct instruction on the subject for the defendant. Bellows v. Travelers Insurance Co., 203 S.W. 978; State ex rel. Long v. Ellison, 272 Mo. 571; Murdock v. Dunham, 206 S.W. 915. (5) The renewal of an accident policy is a new contract; and false representations made by the insured to secure the renewal of the policy in suit rendered the contract null and void. Long Bros. Grocery Co. v. U.S. Fid. & Guaranty Co., 130 Mo.App. 421; Commercial Bank v. American Bonding Co., 194 Mo.App. 224; Pacific Mutual Life Ins. Co v. Vogel, 232 F. 337; Hodgson v. Preferred Acc. Ins Co., 165 N.Y.S. 293.

John L. Burns, D. E. Killam and Abbott, Fauntleroy, Cullen & Edwards for respondent.

(1) The defendant seeks to sustain the contention that the deceased, with intent to end his life, willfully and intentionally projected himself from the side steps or running board of a moving car. The intent is the controlling feature of this defense, and the existence of said intent is sought to be proved by circumstances only. There is no direct evidence that any act done by insured was with intent to commit suicide. "Suicide" in law is the act of taking one's own life voluntarily and intentionally -- self-murder. Sampson v. Lady Maccabees, 89 Neb. 641; Coverston v. Connecticut Mut. Life Ins. Co., 6 F. 654. Suicide is contrary to the general conduct of mankind and also shows gross moral turpitude in a sane person. Mallony v. Travelers' Ins. Co., 47 N.W. 52, 54. In insurance cases the presumption against suicide casts upon the insurer who claims that death was intentional the burden of establishing it by a preponderance of testimony. Travelers' Ins. Co. v. McConkey, 127 U.S. 661; Standard L. Ins. Co. v. Thorton, 100 F. 582, 40 C. C. A. 564; Sharland v. Washington L. Ins. Co., 101 F. 206; Supreme Ct. of Honor v. Barker, 96 Ill.App. 490; Sovereign Camp v. Truby, 70 Neb. 506; White v. Prudential Ins. Co., 120 A.D. 260, 105 N.Y.S. 87. (2) There is a presumption against death by suicide, even where it is proved that death was self-inflicted. It is presumed to have been accidental unless the contrary is made to appear. Wigmore on Evidence, secs. 2510, 2540, note; Grand Lodge v. Banister, 80 Ark. 190; 18 Am. & Eng. Encyc. Law (2 Ed.) 77.

Ragland, J. Graves, C. J., Woodson, White and David E. Blair, JJ., concur; James T. Blair, J., concurs in the result, only, in separate opinion.

OPINION

RAGLAND

This suit has for its basis a policy of insurance issued by defendant to one Morris Rich. According to certain provisions of the policy, the defendant obligated itself to pay to plaintiff, the beneficiary therein named, the sum of $ 30,000, in the event that the insured, while on a public conveyance, sustained bodily injury, through accidental means, which resulted directly, independently and exclusively of all other causes in death. The policy contained the further provision that in case of the death of the insured from suicide the defendant would pay the beneficiary the sum of $ 1000.

The petition, after alleging the execution of the policy and pleading the provisions thereof above referred to, except the stipulation as to suicide, to which no reference was made, stated:

"That the death of the said Morris Rich occurred on or about the 9th day of June, 1919, and resulted solely from bodily injuries effected directly and independently of all other causes through external, violent and accidental means, to-wit:

"The insured was engaged in riding upon a Creve Coeur Lake street car, returning from the lake to the city of St. Louis, at a point about one and one-half miles east of the lake, when and where he attempted to change his seat on the car and stepped into and on the side passageway of said car, and while being in and on the floor of said passageway of said car and in the act of going from one part of the car to another for that purpose, he accidentally fell from the car, which resulted in the following injuries, to-wit:

"Badly crushed leg and severe nervous shock and loss of blood which caused the death of the insured on said 9th day of June, A. D. 1919."

The answer admitted the execution of the policy and that the defendant thereby undertook and agreed to pay the plaintiff the sum mentioned in case of death of the insured from bodily injuries sustained while said policy was in force, from external, violent and accidental means, but denied all the other allegations of the petition. It further averred, however, that the death of the insured was due to suicide, and that said policy expressly provided that in such event the liability of the defendant should be limited to $ 1000. In addition to the above, the falsity of certain declarations made by the insured in his application for the policy and in his applications for the annual renewal thereof, alleged to have been warranties, was pleaded as a defense.

With respect to the facts the following from appellant's statement fairly outlines those about which there is no essential controversy:

"The insured, Morris Rich, was born January 14, 1850, and died June 9, 1919. In his earlier years he had been a mining engineer in the West; subsequently a contractor in St. Louis and for perhaps ten or twelve years before his death he had done nothing. He had one child, the plaintiff here, married to one Landau, with whom Rich resided in St. Louis. He was quite fond of this daughter and her child. To his friends and social acquaintances he exhibited nothing wrong -- nothing abnormal. . . .

"The Creve Coeur electric line runs a distance of about twelve miles in St. Louis County from Delmar Garden to Creve Coeur Lake. Delmar Garden is its point of connection with the city cars; Creve Coeur Lake, its other terminus, is a kind of summer resort. It runs (a double track) over a private right of way, mostly fenced, over hill and down dale, through cuts, over embankments and bridges. In physical characteristics it is in no respect unlike any ordinary steam railroad traversing a similar country, and is not at all like unto the ordinary city or large town electric car line. The longest trestle on the line is one spanning both a creek and the tracks of the Rock Island Railroad, and situated about a mile and a half from the Creve Coeur Lake terminus. This trestle is three hundred feet or more in length and from twenty-five to thirty-five feet high. The western approach thereto is upon an embankment of three or four hundred feet in length, which, at its junction with the trestle, has a height of about twenty-five feet. The iron supports of the trestle project above the track level some three or four feet and are visible to passengers on a car approaching from the west six or seven hundred feet away, the track being straight and level for that distance. There are some sixty stopping places between Delmar Garden and Creve Coeur, seven of which are between the Rock Island trestle and Creve Coeur. Cars only stop at these places where there are either persons to get on or passengers to get off. At no point on the line will more than a minute elapse after a passenger on the car rings the bell before the car will reach and stop at the next stopping place, so frequent are they along the line. The running time from Delmar Garden to Creve Coeur was thirty-five minutes, with a five-minute stay at each terminus.

"Car No. 810 of the Creve Coeur Lake line is an open 'Moonlight' car. The seats run crosswise the car and are as long as the car is wide. The left or inner side of the car is inclosed with iron netting. There is a running board along the right-hand side of the car for passengers to step on in boarding the car, and handholds on the ends of the seats to assist the passenger in lifting himself from the running board to the floor level. Stanchions at every other seat support the roof and these also serve as handholds for the same purpose. Each seat is like every other seat. Each of them will seat six persons in entire comfort. The back of each seat is equipped with bells at convenient intervals, so that passengers may signal for stops. There are no accommodations of any kind on the car other than a place to sit down and ride. . . .

"At about twelve o'clock on the day of his death, June 9, 1919, Rich, the insured, boarded this car No 810 at Delmar Garden and rode the thirty-five-minute, twelve-mile ride from Delmar Garden to Creve Coeur Lake. He sat in one of the rear seats. He did not get off the car...