Morris v. Equitable Assur. Soc. of U.S.

• Citation: 102 S.W.2d 569,340 Mo. 709
• Decision Date: 11 March 1937
• Docket Number: 33333
• Parties: Clarence R. Morris v. The Equitable Assurance Society of the United States, a Corporation, Appellant
• Court: United States State Supreme Court of Missouri

102 S.W.2d 569

340 Mo. 709

Clarence R. Morris v. The Equitable Assurance Society of the United States, a Corporation, Appellant

No. 33333

Supreme Court of Missouri

March 11, 1937

Appeal from Greene Circuit Court; Hon. Warren L. White Judge.

Affirmed.

Barbour McDavid & Barbour and F. W. Barrett for appellant.

(1) Accidental means are those which produce effects which are not the natural and probable consequences of the act. Wright v. United Comm. Trav., 174 S.W. 833, 188 Mo.App. 457. An unforeseen result is not an accident, but to constitute an accident something unexpected, unusual or unforeseen must have occurred. Caldwell v. Trav. Ins Co., 267 S.W. 907. (a) In an action on an accident policy, the burden is on the plaintiff to show that the alleged accident occurred, and that it was the proximate cause of insured's death. Berkley v. Loc. Eng. Mut. L. & Acc. Assn., 274 S.W. 917; Lamport v. Aetna Life Ins. Co., 199 S.W. 1020; Wright v. United Comm. Trav., 174 S.W. 833, 188 Mo.App. 457. (b) And such evidence must not leave it to mere conjecture. And if the death may have been due to one of two causes, one for which the defendant may be liable and the other not, the plaintiff cannot recover. Freeman v. Loyal Prot. Ins. Co., 196 Mo.App. 383, 195 S.W. 545; Atherton v. Ry. Mail Assn., 221 S.W. 756; Caldwell v. Trav. Ins. Co., 267 S.W. 907; Phillips v. Trav. Ins. Co., 231 S.W. 947; Kopribrica v. Standard Acc. Ins. Co., 218 S.W. 689. There is no presumption of law that because death is not presumed to be due to suicide, that it was accidental; and the burden of proving the accident remains with the plaintiff. Lessing v. Trav. Prot. Assn., 169 Mo. 282. (c) The trial court should have sustained the defendant's demurrer at the close of the plaintiff's evidence and at the close of all the evidence for the reason that the evidence fails to show Morris' death was due to an "accident." Landau v. Pacific Mut. Life Ins. Co., 305 Mo. 542, 267 S.W. 370; Tilliston v. Travelers' Ins. Co., 304 Mo. 487, 263 S.W. 819; Bingham v. Continental Cas. Co., 219 Ky. 501, 293 S.W. 968. Compare two instances of "stumbling" and falling or "slipping" and falling as being an accident. Greenlee v. K. C. Cas. Co., 192 Mo.App. 303, 182 S.W. 138; Equitable Acc. Ins. Co. v. Osborn, 90 Ala. 201, 9 So. 869, 13 L. R. A. 267. (2) Where a petition contains a specific charge, the submission of the case to the jury under a general charge is erroneous. Beave v. Transit Co., 212 Mo. 331; Thompson v. Livery Co., 214 Mo. 487; Stermolle v. Brainard, 24 S.W.2d 712; Mundy v. St. L.-S. F. Ry. Co., 45 S.W.2d 941; Edmondson v. Kansas City, 57 S.W.2d 690. (a) An instruction is erroneous which submits an abstract proposition of law to the jury, without hypothesizing the facts to which the law is applied. Perles v. Fieldman, 28 S.W.2d 375; Lewis v. K. C. Pub. Serv. Co., 17 S.W.2d 359; Burger v. Mudhorp, 50 S.W.2d 174. (b) Plaintiff's Instruction 1 is erroneous because it does not hypothesize the facts, if any, claimed to constitute an "accident" and so gives the jury a roving commission to find an "accident" without defining it within the evidence offered. Terry v. Woodmen Acc. Co., 225 Mo.App. 1223, 34 S.W.2d 163. Compare the following cases for proper method of instructing the jury in an "accident" insurance policy case. Fetter v. Fidelity & Cas. Co., 174 Mo. 256, 73 S.W. 592; Goodes v. Order of U. C. T., 174 Mo.App. 330, 156 S.W. 995.

Wear & Benton and Haymes & Dickey for respondent.

(1) In a suit on an accident policy respondent sustains the burden of showing that the death was accidental and makes a prima facie case when it is shown that death results from external and violent means. Fetter v. Fid. & Cas. Co., 174 Mo. 256; Brunswick v. Standard Acc. Ins. Co., 278 Mo. 166; U.S. Fid. & Guar. Co. v. Blum, 270 F. 946; Bohaker v. Trav. Ins. Co., 102 N.E. 342; Mayhew v. Trav. Protective Assn., 52 S.W.2d 29; Meadows v. Life Ins. Co., 129 Mo. 76; Nerrow v. Pac. Mutual, 294 S.W. 97; Mut. Life Ins. Co. v. Sargent, 51 F.2d 4; Mass. B. & I. Co. v. Santee, 62 F.2d 724; Lovelace v. Trav. Protective Assn., 126 Mo. 104. (a) Burden of proof is on appellant to prove that the death was the result of any of the excepted causes named in the policy. Fetter v. Fid. & Cas. Co., 174 Mo. 256; Brunswick v. Standard Acc. Ins. Co., 278 Mo. 166; Mayhew v. Trav. Protective Assn., 52 S.W.2d 29; Bibbs v. Fid. Health & Acc. Ins. Co., 71 S.W.2d 764; Meadows v. Life Ins. Co., 129 Mo. 76. (b) Where prima facie case is made by showing death to have been by external and violent means and appellant pleads and seeks to prove that the cause of death comes within one of the provisos and exceptions of the policy, the case is one for the jury. Brunswick v. Stand. Acc. Ins. Co., 278 Mo. 166; U.S. Fid. & Guar. Co. v. Blum, 270 F. 946; Gleenlee v. K. C. Casualty Co., 192 Mo.App. 303; Goodes v. Order of U. C. T., 174 Mo.App. 330; Nerrow v. Pac. Mutual, 294 S.W. 97. (c) Even though respondent offers no proof contradicting defendant's evidence tending to prove an affirmative defense, the case is still one for the jury. Bibbs v. Fid. Health & Acc. Ins. Co., 71 S.W.2d 764. (d) The cause of death may be found from facts and circumstances, but the cause of death is a fact for the jury. Brunswick v. Standard Acc. Ins. Co., 278 Mo. 166; U.S. Fid. & Guar. Co. v. Blum, 270 F. 946; Nerrow v. Pacific Mut., 294 S.W. 97; Lovelace v. Trav. Protective Assn., 126 Mo. 104. (2) Respondent's Instruction 1 was within the pleadings and the evidence and restricted respondent's recovery to the accident alleged. The fact that insured was killed by the engine of a train on a railroad of the St. Louis-San Francisco Railroad west of Rogersville was conceded. In fact, it was proved by both plaintiff and defendant. The only issue was whether insured's death was accidental, as alleged by plaintiff, or either suicidal or due to physical infirmity, as alleged by defendant. (a) Plaintiff's Instruction 1 properly instructed the jury on the controverted issue. Meisenbach v. Nat. L. & A. Co., 241 S.W. 450; Nerrow v. Pac. Mut. Life Ins. Co., 294 S.W. 97; Goodes v. Order of U. C. T., 174 Mo.App. 330; Hayward v. Globe & Rutgers Fire Ins. Co., 6 S.W.2d 648. (b) The instruction was not broader than the pleadings upon which the case was tried. The rule that specific allegations in a petition must be contained in and limit plaintiff's instructions authorizing recovery does not apply to allegations of the petition not in controversy at the trial. Davidson v. Transit Co., 211 Mo. 360, 109 S.W. 583. (c) Because the petition may be read as a general charge simply that insured was struck and killed by a train at a certain time and place; and doubt of interpretation will be resolved in favor of the pleader. Moll v. Pollack, 8 S.W.2d 45. (d) The expression of the petition that insured was struck and killed by the train "while crossing" the track does not render the petition's description of the accident such a "specific allegation" as to require the use of the words "while crossing" in the petition. (3) Appellant's refusal to pay was vexatious. Appellant had no defense. The facts fixing its liability were known by defendant from the beginning. In its investigation it found no evidence to lessen their force. In the trial it offered no testimony to contradict them. Hence its refusal to pay was clearly vexatious and plaintiff is entitled to the attorney's fee allowed by the jury. Keller v. Home Life Ins. Co., 198 Mo. 460; Curtis v. Indemnity of America, 37 S.W.2d 616; Zackwik v. Hanover Fire Ins. Co., 225 S.W. 135; Nerrow v. Pac. Mut. Life Ins. Co., 294 S.W. 97; Rush v. Met. Life Ins. Co., 63 S.W.2d 453; Porter v. Equitable Life Assur. Soc., 71 S.W.2d 766; Hawkins v. Washington Fid. Natl. Ins. Co., 78 S.W.2d 543; Hiller v. Conn. Fire Ins. Co., 63 S.W.2d 461; Hayward v. Globe & Rutger Fire Ins. Co., 6 S.W.2d 648.

Cooley, C. Westhues and Bohling, CC., concur.

OPINION

COOLEY

This case has recently been reassigned to the writer. It is a suit on an insurance policy. Verdict and judgment for plaintiff, respondent, for $ 10,503.33 plus $ 1000 attorney fees assessed for vexatious refusal to pay, and defendant appealed. The policy insured the life of James C Morris, naming his brother Clarence, respondent herein, as beneficiary. It provided for payment of $ 10,000 upon the death of the insured and for $ 20,000 (double indemnity) "in event of death from accident." Due proof of death was made. Appellant paid the single indemnity, $ 10,000, but refused to pay more, claiming that the death was not from accident, within the terms of the policy. This suit was to recover the additional $ 10,000 and interest with penalty and attorney fees for alleged vexatious refusal to pay.

The policy provided for the payment of $ 20,000 "in event of death from accident" upon proof that the death of insured "resulted solely from bodily injuries caused directly, exclusively and independently of all other causes by external, violent and purely accidental means, subject to the terms and conditions contained on the third page hereof." On said third page is this provision (quoting all of the pertinent portion):

FROM ACCIDENT

"The increased amount of insurance as stipulated on the face hereof, in case of accidental death shall be payable upon receipt of the proof that the death of the insured occurred while this policy was in full force and effect, and resulted solely from bodily injuries, caused directly, exclusively and independently of all other causes by external, violent and purely accidental means, provided that death shall ensue within 90 days from the date of such injuries and shall not be the result of or be caused directly or indirectly by self-destruction, sane or insane, disease or illness of any...