Lemmon v. Continental Cas. Co.
| Decision Date | 02 February 1943 |
| Docket Number | 38155 |
| Parties | Marshall D. Lemmon, Appellant, v. Continental Casualty Company, Respondent |
| Court | Missouri Supreme Court |
Rehearing Denied March 2, 1943.
Motion to Transfer to Banc Overruled April 6, 1943.
Appeal from Jackson Circuit Court; Hon. Emory H. Wright Judge.
Reversed and remanded.
Scarritt Jones & Gordon for appellant.
(1) When an insured person, under an accident policy, commits suicide when insane his death is deemed to be an accident, and the insurer is liable on the policy. Rodgers v. Travelers Ins. Co., 311 Mo. 249; Mutual Life Ins. Co. v. Terry, 82 U.S. 580. (2) The trial court erred in giving defendant's Instruction D, in that it embodied a definition, or test, of insanity that is improper, and is inconsistent with plaintiff's Instruction 2. Rodgers v. Travelers Ins. Co., 311 Mo. 249; Mutual Life Ins. Co. v. Terry, 82 U.S. 580; Grand Lodge v. Wieting, 168 Ill. 420; Davis v. United States, 165 U.S. 373; Smith v. United States, 36 F.2d 548; Knapp v. Order of Pendo, 79 P. 209, 36 Wash. 606; State v. Reidell, 14 A. 550; The Human Mind, Dr. Meninger, p. 450; Text Book of Legal Medicine and Toxicology, p. 598. (3) The giving of inconsistent and conflicting instructions is reversible error. Seithel v. Dairy Co., 300 S.W. 280; Standard Oil Co. v. Drug Co., 74 Mo.App. 446; Kuhlman v. Water Co., 307 Mo. 637; Landon v. United Rys. Co., 237 S.W. 497.
Henry M. Shughart, Harry P. Thomson, Jr., and Walter A. Raymond for respondent.
(1) Appellant is not entitled to have this court pass on the alleged errors in the instructions for the reason he did not have all the evidence included in the bill of exceptions, and this notwithstanding defendant has always contended its demurrer to the evidence should have been sustained, in which event, any possible error in the instructions would be immaterial. State ex rel. Chicago, R. I. & P. Ry. Co. v. Shain, 338 Mo. 217, 89 S.W.2d 654; Klene v. St. Louis-S. F. Ry. Co., 321 Mo. 162, 9 S.W.2d 950; Manthey v. Kellerman Contracting Co., 311 Mo. 147, 277 S.W. 927; Bedsaul v. Feeback, 341 Mo. 50, 106 S.W.2d 431; Fears v. Newman Mercantile Co., 156 S.W.2d 909. (2) The court committed no error in giving defendant's Instruction D. Such instruction laid down the proper and legal definitions or tests of insanity under the law of Missouri. Rubinstein v. N. Y. Life Ins. Co., 153 S.W.2d 760; State ex rel. v. St. Louis, 241 Mo. l. c. 238, 145 S.W. 801; State v. Pagels, 92 Mo. 300, 4 S.W. 931; State v. Jackson, 346 Mo. 474, 142 S.W.2d 45; Eisenhardt v. Siegel, 343 Mo. 22, 119 S.W.2d 810; State v. West, 142 S.W.2d 468; Rodgers v. Travelers' Ins. Co., 311 Mo. 349, 278 S.W. 368; Rubinstein v. New York Life Ins. Co., 153 S.W.2d 760; Broughton's Case, 109 U.S. 131; Laventhal v. N. Y. Life Ins. Co., 40 F.Supp. 157; Judd v. State, 16 P.2d 721. (3) Plaintiff failed to make a submissible case for the jury, hence any error in the instructions is harmless and not ground for reversal. Wallace v. Herman Body Co., 163 S.W.2d 923; Griffith v. Continental Casualty Co., 299 Mo. 426, 253 S.W. 1043. (4) The opinion of the plaintiff's medical witness, Dr. Harrington, does not constitute substantial evidence entitling the case to go to the jury because based solely on the fact of suicide, which was an insufficient legal basis therefor. Kimmie v. Terminal R. Assn. of St. Louis, 334 Mo. 596, 66 S.W.2d 561; Berkemeier v. Reller, 317 Mo. 614, 296 S.W. 739; Wacker v. Natl. Life & Accident Ins. Co., 201 Mo.App. 586, 213 S.W. 869; Holton v. Cochran, 208 Mo. 314, 106 S.W. 1035; Ann. Cas., 1912A, p. 44; 14 R. C. L., p. 621; 28 Am. Jur., p. 765, sec. 140; New York Life Ins. Co. v. King, 93 F.2d 347; Ritter v. Mutual Life Ins. Co., 169 U.S. 139, 147, 18 S.Ct. 300; Sayre v. Trustees of Princeton University, 192 Mo. 95, 90 S.W. 787. (5) The opinion of plaintiff's expert witness, Dr. Harrington, does not constitute substantial evidence entitling the case to go to the jury because the hypothesis of facts submitted was entirely consistent with mental soundness, and for that reason did not measure up to the legal requirements. Nute v. Fry, 341 Mo. 1138, 111 S.W.2d 84; Panjiris v. Oliver Cadillac Co., 98 S.W.2d 969; Stevens v. Meadows, 340 Mo. 252, 100 S.W.2d 281; Hall v. Mercantile Trust Co., 332 Mo. 802, 59 S.W.2d 664; Smarr v. Smarr, 319 Mo. 1153, 6 S.W.2d 860; Callaway v. Blankenbaker, 141 S.W.2d 810; New York Life Ins. Co. v. King, 93 F.2d 347; Lechner v. Peters, 329 Mo. 891, 46 S.W.2d 527. (6) Defendant's Instruction D embodied a correct definition or test of insanity and any inconsistency between that instruction and plaintiff's Instruction 2 constitutes harmless error as to which plaintiff is in no position to complain. Reardon v. Mo. Pac. Ry. Co., 114 Mo. 384, 21 S.W. 731; Hall v. Mo. Pac. Ry. Co., 219 Mo. 553, 118 S.W. 56; Williams v. Excavating & Foundation Co., 93 S.W.2d 123; Huselton v. Commerce Trust Co., 228 Mo.App. 150, 64 S.W.2d 757.
Action to recover on an accident insurance policy; verdict and judgment went for defendant and plaintiff appealed.
The policy was issued to Roscoe A. Kelly, August 10, 1914, and insured's wife was beneficiary at time of his death. After his death the policy was assigned to plaintiff. Judgment was asked for $ 7500, with interest, and also for attorney's fees, etc., for alleged vexatious refusal to pay. Sec. 6040, R. S. 1939, Mo. R. S. A., Sec. 6040. The amount in dispute gives the supreme court jurisdiction of the appeal. Art. 6, Sec. 12, Constitution; Sec. 2078, R. S. 1939, Mo. R. S. A. 2078; Rodgers v. Travelers' Ins. Co., 311 Mo. 249, 278 S.W. 368.
It is conceded that the insured committed suicide, and intentional suicide, while sane, is not an accident, but suicide while insane is an accident. Aufrichtig v. Columbian National Life Ins. Co., 298 Mo. 1, 249 S.W. 912; Scales v. National Life & Accident Ins. Co., (Mo. Sup.), 212 S.W. 8; Andrus v. Business Men's Accident Assn., 283 Mo. 442, 223 S.W. 70, 13 A. L. R. 779; Brunswick v. Standard Accident Ins. Co., 278 Mo. 154, 213 S.W. 45, 7 A. L. R. 1213. The defense was intentional suicide while sane.
Error is assigned (1) on alleged conflict between plaintiff's instruction No. 2 and defendant's instruction D; and (2) that defendant's instructions C and D unduly emphasize that the burden of proof was on plaintiff.
Defendant, respondent here, makes the point that plaintiff, appellant here, is not entitled to have this court pass on alleged errors in the instructions, for the reason plaintiff "did not have all the evidence included in the bill of exceptions, and this, notwithstanding defendant has always contended its demurrer to the evidence should have been sustained."
It appears from what defendant terms "an additional abstract of the record" that, at the time plaintiff submitted the bill of exceptions to the trial court for allowance and filing, defendant appeared and made objection on the alleged ground that the bill did not contain all the evidence, and defendant preserved the proceedings had upon the objection in what is called respondent's "term bill of exceptions." Plaintiff says that the additional abstract is not proper because the law "authorizes a bill of exceptions only on behalf of an appellant." Without ruling plaintiff's point that the additional abstract is unauthorized, we nevertheless consider its contents because both sides agree, in effect, in the briefs, that the additional abstract contains what occurred on the hearing of defendant's objection to filing and allowance.
In the additional abstract it appears that on the occasion of the presentation of the bill of exceptions for filing and allowance, Mr. Jones, counsel for plaintiff, said: "We are reputable members of the bar and the court knows it, and we state that the only proposition we are going to present to the supreme court is the matter upon the instructions."
Rule 6 of this court provides:
Instead of securing, for the preparation of the bill of exceptions, a complete transcript of the evidence from the court reporter, plaintiff, for the evidence of all the witnesses, except two, inserted in the bill of exceptions, a statement in narrative form taken from the notes and papers in counsel's file. The evidence of the insured's son, William Kelly, and plaintiff's only expert witness, Dr. Harrington, in the bill of exceptions, was from the transcript of the reporter, and so appears in the abstract. There is no statute, ruling or rule, so far as we know, that requires an appellant, in making up the bill of exceptions, to insert, for the evidence, a transcript of the reporter. For an equity case, see our rule 7.
To support the contention that plaintiff is not entitled to have the assigned errors ruled on the merits, for the reason claimed, defendant cites: State ex rel. Chicago, R. I. & Pac. Ry. Co. v. Shain et al., 338 Mo. 217, 89 S.W.2d 654, l. c. 656; Klene v. St. Louis-San Francisco Ry. Co., 321 Mo. 162, 9 S.W.2d 950, l. c. 952; Manthey v. Kellerman Contracting Co., 311 Mo. 147, 277 S.W. 927, l. c. 930; Bedsaul v. Feeback et al., 341 Mo. 50, 106 S.W.2d 431, l. c. 432; Fears v. Newman Mercantile Co. et al., 348 Mo. 1102, 156 S.W.2d 909, l. c. 911.
In State ex...
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