Parker v. Aetna Life Insurance Company

• Decision Date: 11 July 1921
• Citation: 232 S.W. 708,289 Mo. 42
• Parties: SUSAN A. PARKER v. AETNA LIFE INSURANCE COMPANY, Appellant
• Court: Missouri Supreme Court

232 S.W. 708

289 Mo. 42

SUSAN A. PARKER v. AETNA LIFE INSURANCE COMPANY, Appellant

Supreme Court of Missouri, First Division

July 11, 1921

Appeal from Jackson Circuit Court. -- Hon. Thomas J. Seehorn, Judge.

Affirmed.

J. C Rosenberger and McVey & Freet for appellant.

(1) The insurance contract was made, executed and delivered in the State of California, and is governed by the laws of California. The law of that State was duly pleaded and proven. (a) The policy contains the following provision "If insured shall commit suicide within one year from the date hereof this policy shall be null and void." This condition is valid under the law of California. Dennis v. Union Mutual Life Ins. Co., 84 Cal. 570. (b) The policy was issued July 11, 1914, and the insured committed suicide February 10, 1915; within one year from date of the policy. (2) This case is to be considered under the following rule, viz.: "When the reasonable probabilities from the evidence all point to suicide as the cause of death, so as to establish it, in the light of reason and common sense, with such certainty as to leave no room for reasonable controversy on the subject, a jury should not be permitted to find to the contrary and have such finding stand as a verity in the case, but the question should be decided by the court as one of law." Brunswick v. Accnt Assn., 278 Mo. 154, 273, 213 S.W. 50, quoting with approval from Agen v. Ins. Co., 105 Wis. 218, 80 N.W. 1020; Mockowik v. Ry. Co., 196 Mo. 550, 567; Richey v. Woodmen, 163 Mo.App. 235; Newland v M. W. A., 168 Mo.App. 311; Howes v. Trav. Men's Assn., 241 F. 278; 7 Cooley's Briefs on Ins., 3264; Hardinger v. Modern Brotherhood, 103 N. W. (Neb.) 74. Mere surmise and conjecture, unsupported by evidence, affords no valid ground for a verdict. Spiro v. Transit Co., 102 Mo.App. 250, 262; Bates County Bank v. Ry. Co., 98 Mo.App. 330; More v. Ry. Co., 28 Mo.App. 622; Peck v. Ry. Co., 31 Mo.App. 126; Roberts v. Ry. Co., 56 Mo.App. 64. (3) The presumption against suicide has no place in the presence of the actual facts. The presumption ceased to exist in the face of plaintiff's story of the suicide. (a) As the facts were established by the undisputed testimony; by plaintiff's own evidence and admissions, this court, in determining whether suicide was established as a matter of law, will not take into account the presumption against suicide. Mockowik v. Ry. Co., 196 Mo. 550, 571; Guthrie v. Holmes, 272 Mo. 215; Brunswick v. Accident Assn., 278 Mo. 154; Andrus v. Business Mens' Acc. Assn., 223 S.W. 74; Packing Co. v. Railroad Co., 196 S.W. 406; 1 Jones on Evidence, sec. 10-F, p. 74; Galpin v. Page, 85 U.S. 350, 365, 21 L.Ed. 959; 9 Ency. Evidence, sec. 6, p. 885; Erhart v. Dietrich, 118 Mo. 418; Myers v. City of Kansas, 108 Mo. 480; Winter v. K. of P., 96 Mo.App. 1; Moberly v. K. C. Ry. Co., 98 Mo. 183; Keller v. Over, 136 Pa. St. 20; Supreme Tent v. King, 142 F. 678. As the presumption against suicide has no place in the consideration of the evidence, this appeal is to be determined by the same rules which apply to the ordinary inquiry on appeal as to whether the plaintiff has made a case for the jury, i. e., whether suicide was established as a matter of law. And that rule is as expressed in the authorities cited in point. (4) The undisputed evidence clearly established suicide as a matter of law, and the court erred in refusing defendant's requested peremptory instruction and erred in submitting the case to the jury over the objections of the defendant; and erred in overruling defendant's motion for new trial, and especially paragraphs 1, 2, 6-11, and erred in overruling defendant's motion in arrest of judgment. (a) The verdict is the result of passion and prejudice on the part of the jury. (b) The verdict in this case is without the slightest evidence to support it. It is a travesty on justice; the overthrow of reason; the clear result of passion and prejudice on the part of the jury, and without legal cause or excuse. (c) There is no theory of accident based on the evidence, or to be inferred from the evidence, which the reasonable mind of this court can for a moment entertain. Richey v. W. O. W., 163 Mo.App. 235, 247. (d) There is no conflict in the evidence; it all points clearly and unmistakably to death by suicide. Any other conclusion would outrage all reason. To reach any other conclusion one must go outside of the record and resort to fanciful conjecture or speculation, which is not permissible. Hardinger v. M. B. A., 103 N.W. 74; Agen v. Ins. Co., 105 Wis. 217, 80 N.W. 1020. (5) The court erred in giving in charge to the jury plaintiff's requested instruction number one. (a) It was the duty of the court to clearly and fairly present the issue of suicide, which was the only issue in the case. This was not done in the instruction. It directed the jury's attention to feigned and false issues, and away from where the shoe actually pinched. It belittled, subordinated and submerged the issue of suicide and made of feigned issues the prominent and controlling issues, and diverted the mind of the jury from the real and only issue, i. e., that of suicide. The defendant was entitled to a fair presentation of that issue, and was entitled to have the jury's mind focused on and not diverted from the issue of suicide. The instruction was most prejudicial and the giving of it was flagrant error. Strother v. Milling Co., 261 Mo. 22. (b) The definition of "burden of proof" is erroneous. It is the definition of "preponderance of evidence." This error was prejudicial. (c) The plan of obscuring the issue by putting something else forward to talk about is no working theory in the administration of justice. Strother v. Milling Co., 261 Mo. 22; Sooby v. Postal Tel. Co., 217 S.W. 877; Ins. Co. v. Walker, 67 Ark. 147. (d) Where the evidence renders it doubtful in the mind of the court as to whether the verdict was right the instructions given must be accurate. Black v. Black, 190 Ill.App. 559; Foley v. Ry. Co., 179 Mich. 586; St. Louis Elec. Ry. Co. v. Groves, 97 S.W. 1084; City of Lafayette v. Ashby, 8 Ind.App. 214. (e) Defendant's instructions cannot be relied upon to cure errors in plaintiff's instructions. (6) The court erred in excluding competent, relevant and material evidence offered by the defendant. (a) Admissions against interest made by plaintiff to her maid Anna Williamson, wherein plaintiff stated that her husband had committed suicide. The court erroneously held that the statement that Parker committed suicide, was merely an opinion and conclusion of the plaintiff, and hence incompetent. The evidence was competent, and its exclusion was prejudicial error. (b) Exclusion of the evidence of expert witness Cato that, judging from the powder burns and the wound, the revolver, in his opinion, was discharged close to the head of the deceased. The court erroneously held that the question called for a speculative conclusion and was incompetent. (7) The court erred in admitting in evidence over the objections of the defendant, the conclusions and opinions of witnesses as to the happy home life, mental state or state of mind of the deceased, and his disposition.

Haff, Meservey, German & Michaels and Humphrey, Boxley & Reeves for respondent.

(1) There was no proof that the insured committed suicide; on the contrary the great preponderance of the evidence showed the death to have been accidental; and appellant's request for a peremptory instruction was properly overruled. Reynolds v. Casualty Co., 274 Mo. 83; Prentiss v. Ins. Co., 225 S.W. 695; Brunswick v. Cas Co., 278 Mo. 154; Andrus v. Accident Assn., 223 S.W. 70; Gooden v. M. W. A., 194 Mo.App. 666; Printz v. Miller, 233 Mo. 47; Supreme Lodge v. Beck, 181 U.S. 48, 45 L.Ed. 741; Home Ben. Life Assn. v. Sargent, 142 U.S. 691, 35 L.Ed. 1160; Tuepker v. W. O. W., 226 S.W. 1002; Remfry v. Ins. Co., 196 S.W. 775; Grey v. Forresters, 196 S.W. 779; Pagel v. Cas. Co., 158 Wis. 278, 148 N.W. 878; Bacon on Life & Accident Ins. (4 Ed.), sec. 438. (2) The court did not err in giving respondent's instruction number one. Morgan v. Mulhall, 214 Mo. 451, 462; Stewart v. Mason, 186 S.W. 578; Printz v. Miller, 233 Mo. 47; Brown v. Assurance Co., 45 Mo. 221; Brown v. Assurance Co., 45 Mo. 221; Keeton v. National Union, 182 S.W. 798; Lange v. Mo. Pac. Ry. Co., 208 Mo. 478; Owens v. Railway, 95 Mo. 181; Colburn v. Krenning, 220 S.W. 934; Meadows v. Ins. Co., 129 Mo. 97; Sonnen v. St. L. Transit Co., 102 Mo.App. 271; Burton v. Ins. Co., 96 Mo.App. 204; Burgwyn v. Whitfield, 81 N.C. 261; Berry v. Railroad, 214 Mo. 593, 604; Ellis v. Met. St. Ry., 234 Mo. 679; Patterson v. Evans, 254 Mo. 304; Reynolds v. Casualty Co., 274 Mo. 83, 86; Mockowik v. Railroad, 196 Mo. 550, 568. (3) The court did not err in excluding certain questions asked witness Williamson. Baker v. Contr. Co., 223 S.W. 45; Meeker v. Met. St. Ry., 178 Mo. 187; State v. Brennan, 75 Mo.App. 176; Stephenson v. Atlantic Co., 230 F. 20; Hicks v. H. & St. J. Ry., 68 Mo. 329. (4) The court did not err in sustaining objections to certain questions asked witness Cato. Gavish v. Ry., 49 Mo. 274; Railway v. Stock Yds., 120 Mo. 541; Koenig v. Railroad, 173 Mo. 698; Benjamin v. Railroad, 133 Mo. 274; Lee v. Knapp, 155 Mo. 610; McAnany v. Henrici, 238 Mo. 103; Helfenstein v. Medant, 136 Mo. 595; Bradley v. Ry., 64 Mo.App. 475; Gates v. Ry., 44 Mo.App. 488; 22 C. J. 536; Kerr v. M. W. A., 117 F. 593; Inghram v. National Union, 103 Iowa 395. (5) It was not error to admit evidence of deceased's health, disposition, state of mind, and home life. Laessig v. Protec. Assn., 169 Mo. 272, 274, 276; 1 C. J. 499; 2 Bacon on Benefit Soc. & Life Ins. (3 Ed.) sec. 336A; Prov. Assn. Soc. v. Whayne, 93 S.W. 1049; Com. v. Trefethen, 157 Mass. 309; Reynolds v. Cas. Co., 274...