Rodgers v. Travelers' Ins. Co.

• Citation: 278 S.W. 368
• Decision Date: 22 December 1925
• Docket Number: No. 25022.,25022.
• Parties: RODGERS v. TRAVELERS' INS. CO.
• Court: United States State Supreme Court of Missouri

278 S.W. 368

RODGERS v. TRAVELERS' INS. CO.

No. 25022.

Supreme Court of Missouri, Division No. 1.

December 22, 1925.

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

Action by Mary Plummer Rodgers against the Travelers' Insurance Company. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

Banister, Leonard, Sibley & McRoberts and Shepard Barclay, all of St. Louis, for appellant.

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

GRAVES, J.

Action on an accident insurance policy. An attempt was made to remove the cause to the federal court, but this was denied by both the state and the federal court. The case was tried upon certain stipulated facts and other evidence. The answer in the state court, and the only one involved here, was a general denial.

The petition asked for the sum of $7,500 under the policy; this being one-half of the value of the policy at the date of the death of Frank W. Rodgers, who was the husband of the plaintiff. The other half was to go to another beneficiary. The petition not only asked for the $7,500 but for attorney's fees in the sum of $3,000, and 10 per cent. damages for "defendant's vexatious delay and unreasonable refusal to pay said loss"; hence our jurisdiction in the case upon the appeal of the plaintiff.

Upon the trial, the defendant had a verdict signed by ten jurors, and upon such verdict the judgment now appealed from was entered.

The plaintiff introduced in evidence the policy with the riders attached sued upon, a letter showing a refusal to pay the policy, proof of the reasonable value of her attorney's fees, and the stipulation as to certain facts, and rested her case. The stipulation, as to certain facts reads:

"It is hereby stipulated and agreed between plaintiff and defendant, by their respective counsel that each of the following facts may be taken as true in the above case, and that this stipulation may be admitted in evidence and read to the jury in proof thereof in any trial of this case:

"(1) That defendant is and was at all times in question incorporated under the laws of the state of Connecticut, and is and was at all such times duly licensed to do and doing business in the state of Missouri as a foreign insurance company.

"(2) That defendant, for a valuable consideration or premium received, issued and delivered, in the city of St. Louis, Mo., to one Frank W. Rodgers, on or about November 3, 1914, its special accumulative accident policy No. E.B107953, as per copy of policy and riders hereto attached, which may be introduced in evidence and read to the jury in any trial of this case with the same force and effect as the original policy and riders.

"(3) That said Frank W. Rodgers died on or about October 26, 1921, as the result of a gunshot wound received by him on the day of his said death.

"(4) That said policy had been renewed from time to time, and all premiums had been paid annually in advance, and the said policy was in full force and effect at the time of the death of said Frank W. Rodgers.

"(5) That due notice of the death of said Frank W. Rodgers was given by plaintiff and the other beneficiary mentioned in said policy, and was received by defendant. That proof of loss blanks were furnished by defendant to plaintiff, and the other said beneficiary on November 22, 1921, and were duly filled in and returned to defendant by plaintiff and the other said beneficiary in January, 1922.

"(6) That due demands were made on defendant by plaintiff and the other said beneficiary for the payment of said policy, and that on January 28, 1922, the defendant wrote a letter declining to pay the claim made under said policy, the original of which letter is hereto attached."

The battle was thereafter prolonged upon two questions: (1) Whether or not the shot which caused death was accidental or intentional; and (2) if the shot was self-inflicted, whether or not the deceased was sane or insane at the time. The assignment of errors here covers (1) the giving and refusal of instructions; (2) the admission of incompetent evidence and the refusal to admit competent evidence; and (3) the overruling of a motion of the plaintiff for the production of papers. There are 32 assignments of error, but the foregoing classifies them as to their character. Only nine of the assignments are briefed and argued. This sufficiently outlines the case. The evidence will be outlined in the discussion of the points made.

I. There was evidence pro and con upon the questions of accidental injury and insanity. The finding of the jury upon both questions would be conclusive here, unless there was error in the giving and refusing of instructions, or error in the admission or refusal of evidence. It is therefore useless to detail the evidence, in so far as these matters are concerned. Such portions of the evidence as are applicable to the real issues can best be detailed with those issues. It suffices to say, generally, that the evidence tends to show that the deceased procured a permit to purchase a revolver and did purchase one, and five loaded cartridges, very shortly before his dead body was found in Forest Park, St. Louis; that near his body, and within a very short space from his hand, was found a pistol, which was identified as the one he had shortly before purchased. This identification was complete per force of our law as to the sale of such weapons, and the records which must be kept.

II. The appellant (plaintiff) urges that instructions 5, 7, 8, 9 (all reiterating practically the same thing), on the test for insanity, are erroneous, and that the court erred in refusing plaintiff's instruction C on the same subject. Instruction No. 7 for defendant reads:

"If the jury find that the death of the insured was due to suicide, then they should consider the evidence bearing on his mental condition at the time. And in that connection the jury are instructed that the law recognizes various degrees of unsoundness of mind. A man may be of sound mind for one purpose in the law and of unsound mind far another. Suicide is only rendered an accidental death if it be shown that the insured was of unsound mind to such a degree and extent that he was entirely unaware of the physical consequences of his act, and the burden of proving that state of facts rests upon the plaintiff, and must be shown by a preponderance or greater weight of testimony.

"If, therefore, the jury find under the evidence in this case that the death of the insured was due to suicide, then, unless the plaintiff has proven by a preponderance or greater weight of testimony that at that time the insured was so far mentally unbalanced as not to be able to know that it was a pistol which he was handling, or that he was so far mentally unbalanced as not to be able to comprehend that, if he discharged the weapon, it would probably cause him bodily harm, then you are instructed that the plaintiff has failed to sustain the burden of proving insured's insanity, and it will be your duty on that state of facts to return a verdict for the defendant."

We shall quote only one of the four, because, if No. 7 is erroneous, the same erroneous matter was mauled into the minds of the jurors, by the repetition of the same stuff in instructions 5, 8, and 9.

Plaintiff's instruction 0, which was refused, reads:

"The court instructs the jury that, if they believe from the evidence that Frank W. Rodgers inflicted upon himself the gunshot wound which caused his death, and further believe, from all the facts and circumstances in evidence before you, that, at that time, his reasoning faculties were so far impaired by physical and mental disease that he was not able at the time to understand the moral character of said act, and was not then able to distinguish whether his said act was right or wrong, and that his will power then had been so far impaired by disease that he was not then mentally capable of controlling his conduct rationally, and that he was impelled to said act by an irresistible and irrational impulse, then his said act was insane within the meaning of said policy as modified by the law of Missouri, even although you may further believe from the evidence that, at the time of said act of Frank W. Rodgers, he may have had sufficient understanding to know that the physical consequences of said act would be his death."

For reasons stated, supra, defendant's demurrers to the evidence were well ruled by the court. They were refused. As stated, supra, there was substantial evidence (if competent) pro and con upon both questions at issue in the case. The first legal question is the alleged error in instructions 5, 7, 8, 9, given for defendant, and the corresponding legal question involved in the refusal of instruction C, asked by plaintiff. For this reason we take both together.

A thorough research of the authorities convinces us that instructions 5, 7, 8, and 9 for defendant are saturated with error of the most prejudicial character, under the great weight of the more recent well-considered cases. These instructions proceed upon the " theory that, if the deceased had mind enough to know that he was handling a revolver, and in addition to know that, if he discharged it against his person, physical injury or death would follow, then he was not insane. They leave out entirely the idea that he might not have been sufficiently strong in mind to know whether his act was right or wrong, and the further idea that his will power (an attribute of the mind) might have been so reduced that he could not resist an insane impulse to commit the act.

The foregoing question has had a checkered career in the courts of our country. The whole trouble in this country starts with the old English case of Borradaile v. Hunter, 5 Man: & G. 639. Such case was an action upon an insurance policy. Rev. Wm. Borradaile jumped from a bridge into the Thames river, and was drowned. The executor sued upon the policy....