Rodgers v. Travelers Insurance Company

• Decision Date: 22 December 1925
• Docket Number: 25022
• Citation: 278 S.W. 368,311 Mo. 249
• Parties: MARY PLUMMER RODGERS, Appellant, v. TRAVELERS INSURANCE COMPANY
• Court: Missouri Supreme Court

278 S.W. 368

311 Mo. 249

MARY PLUMMER RODGERS, Appellant, v. TRAVELERS INSURANCE COMPANY

No. 25022

Supreme Court of Missouri

December 22, 1925

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

Reversed and remanded.

Banister Leonard, Sibley & McRoberts and Shepard Barclay for appellant.

(1) In a suit upon a policy of insurance against death by accident it was error to instruct the jury that the test of legal responsibility, for the act of self-destruction, is whether deceased was "entirely unaware of the physical consequences of his act," without regard to his ability to distinguish whether said act was right or wrong. R. S. 1919, sec. 6150; Aufrichtig v. Ins. Co., 298 Mo. 1; Ritter v. Ins. Co., 169 U.S. 145; Andrus v. Assn., 283 Mo. 442. (2) It was error to instruct the jury that unless deceased was "unable to know or understand that he was firing a revolver," likely to do "him bodily harm or produce his death," he should be held legally responsible for said act of self-destruction. Grand Lodge v. Wieting, 168 Ill. 408; Blackstone v. Ins. Co., 74 Mich. 592; Knapp v. Order, 36 Wash. 601; Bigelow v. Ins. Co., 93 U.S. 284; Berkley on Mental Diseases, pp. 132, 337; Church-Peterson on Mental Diseases, pp. 672, 772; Life Assn. v. Waller, 57 Ga. 537; Ins. Co. v. Peters, 42 Md. 414. (3) The criterion of legal responsibility for an act of self-destruction is whether the victim is then able to distinguish between right and wrong in so doing, and is not determined by his consciousness that his physical act may produce death, which consciousness many insane suicides possess. Aufrichtig v. Ins. Co., 298 Mo. 1; Ins. Co. v. Terry, 15 Wall. 580; Newton v. Ins. Co., 76 N.Y. 426; Meacham v. Ins. Co., 120 N.Y. 237; Phadenhauer v. Ins. Co., 7 Heisk. 567; Baldwin v. State, 12 Mo. 231. (4) It was error to repeat many times (Instructions 5, 6, 7, 8 and 9) the rule as to the burden of proof resting on plaintiff. This gave undue emphasis to that charge, and especially in the form in which it was expressed in those instructions. Chappel v. Allen, 38 Mo. 222; Anderson v. Kincheloe, 30 Mo. 520; 2 Thompson on Trials, sec. 2331.

Jones, Hocker, Sullivan & Angert for respondent.

(1) The test of insanity is the presence or absence of delusions. Ryan v. People, 60 Colo. 425; Lord Erskine quoted in Com. v. Haskell, 2 Brewst. (Pa.) 497; Bensberg v. University, 251 Mo. 641; Seamen's Friend Society v. Hopper, 33 N.Y. 624; Schissler v. State, 122 Wis. 365. (2) Delusion defined: Conner v. Skaggs, 213 Mo. 348; Fulton v. Freeland, 219 Mo. 517; Benoist v. Murrin, 58 Mo. 307. (3) The test of insanity, in case of the suicide of the insured under an accident policy, is his ability or lack of it to comprehend the physical consequencies of his acts. Borredaile v. Hunter, 5 Man. & G. 280; Clift v. Schwabe, 3 Man. Gr. & Scott, 437; Van Zandt v. Ins. Co., 55 N.Y. 169; Masonic Assn. v. Pollard, 89 S.W. 219; Manhattan Ins. Co. v. Beard, 112 Ky. 461; Allen v. Ins. Co., 4 Allen (Mass.) 96; Adkins v. Ins. Co., 70 Mo. 27; Peterson v. Ins. Co., 152 Wis. 562; Andrus v. Accident Assn., 223 S.W. 74; Gates v. Travelers Ins. Co., 218 S.W. 927; Brunswick v. Ins. Co., 278 Mo. 165.

OPINION

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 $ 7500 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 $ 7500, but for attorney's fees in the sum of $ 3000, and ten 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, Missouri, to one Frank W. Rodgers, on or about November 3, 1914, its Special Accumulative Accident Policy No. E. B. 107953, 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 thirty-two 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 practially 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 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 for 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...