Spillman v. Kansas City Life Ins. Co.
| Citation | 180 S.W.2d 605,238 Mo.App. 419 |
| Parties | Nora Spillman, Respondent, v. Kansas City Life Insurance Company, Appellant |
| Decision Date | 03 April 1944 |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court; Hon. Thos. J. Seehorn, Judge.
Affirmed (conditionally).
Ray B Lucas and Jos. R. Stewart for appellant.
(1) The trial court erred in refusing to give defendant's peremptory instructions, in the nature of general demurrers offered at the close of all the testimony in the case. (a) Because plaintiff's own evidence established that the death of the insured resulted directly or indirectly, wholly or in part, from illness, disease or infirmity, a cause of death expressly excluded from the coverage of the double indemnity benefit riders in each policy. Scales v. Nat Life & Accident Ins. Co. (Mo. App.), 186 S.W. 948, 950; Scales v. Nat. Life & Accident Ins. Co. (Mo.), 212 S.W. 8, 9; Brunswick v. Standard Accident Ins. Co., 278 Mo. 154, 213 S.W. 45, 49; Reed v. Travelers Ins Co., 227 Mo.App. 1155, 60 S.W.2d 59, 61; Carr v. Pac. Mut. Life Ins. Co., 100 Mo.App. 602, 75 S.W. 180, 182; Rieger v. Mut. Life Ins. Co. of N. Y., 234 Mo.App. 93, 110 S.W.2d 878, 881; State ex rel. Prudential Ins. Co. of America v. Shain et al., 344 Mo. 623, 127 S.W.2d 675, 678; Mandles v. Guardian Life Ins. Co. of America (Colo.), 32 F.Supp. 619, 621; Mandles et al. v. Guardian Life Ins. Co. of America (U.S. Cir. Ct. of Appls., 10th Cir.), 115 F.2d 994, 996-998; Fields v. Pyramid Life Ins. Co. (Mo. App.), 169 S.W.2d 111, 114-116; Fields v. Pyramid Life Ins. Co. (Mo.), 176 S.W.2d 281. (b) Because plaintiff's evidence establishes that no claim was made, nor was satisfactory proof, or any proof, submitted to the company at its home office, before surrender of the policies, that the death of the insured resulted independently and exclusively of all other causes, solely from bodily injury effected by external, violent and accidental means, as expressly required by the provisions of the double indemnity riders in each of said policies. 7 Couch on Ins., sec. 1527, p. 5428; 29 Amer. Jur., sec. 1100, p. 825; Schell v. Met. Life Ins. Co. (Mo. App.), 3 S.W.2d 269, 271; Adams v. Metropolitan Life Ins. Co. (Mo. App.), 139 S.W.2d 1098, 1100; Hablutzel v. Home Life Ins. Co. of N. Y. (Mo. App.), 52 S.W.2d 480, 483-4; Jacoby v. New York Life Ins. Co., 229 Mo.App. 333, 77 S.W.2d 840, 844-45; Scales v. National Life & Acc. Ins. Co. (Mo.), 212 S.W. 8, 9; Traiser v. Commercial Travelers Eastern Acc. Assn., 202 Mass. 292, 88 N.E. 901, 902; Wachtel v. Equitable Life Assur. Soc. of the U.S., 266 N.Y. 345, 194 N.E. 850, 852; City Bank Farmers Trust Co. v. Equitable Life Assur. Soc. of the U.S. et al., 285 N.Y.S. 250, 252; Baba v. Mutual Benefit Health & Acc. Assn., 280 Mich. 531, 273 N.W. 795, 798; O'Neil v. Metropolitan Life Ins. Co., 300 Mass. 477, 15 N.E.2d 809, 811. (2) The trial court erred in giving plaintiff's Instruction No. 3, submitting to the jury the question of vexatious refusal to pay and attorneys' fees, and in permitting the jury to assess against the defendant any sum as attorneys' fees without first finding and assessing a penalty for the asserted vexatious refusal to pay. Rieger v. Mutual Life Ins. Co. of N. Y., 234 Mo.App. 93, 110 S.W.2d 878, 882; State ex rel. John Hancock Mut. Life Ins. Co. v. Hughes et al. (Mo.), 152 S.W.2d 132, 134-35; Sec. 6040, R. S. Mo. 1939.
Dwight Roberts and Earl J. Boughan for respondent.
(1) It was not error to overrule defendant's peremptory instructions. (a) It is uncontradicted that the insured committed suicide while insane. Therefore, it was death by accident, under both our statutes and decisions. R. S. Mo. 1939, sec. 5851. (b) Any failure to give notice or make formal proof is no defense and shall not act as a forfeiture unless specifically provided for in the policy of the insured. Jackson v. Security Benefit Assn. (Mo. App.), 139 S.W.2d 1014, 1018. (2) (a) The court did not err in giving plaintiff's Instruction No. 3. Nerrow v. Pac. Mut. Life Ins. Co. (Mo. App.), 294 S.W. 97; Brown v. Ry. Passenger Assurance Co., 45 Mo. 221, 227; Faye v. Aetna Life Ins. Co. (Mo.), 187 S.W. 861; Curtis v. Indemnity Co. of America, 37 S.W.2d 661. (b) There was no error in permitting the jury to assess attorney's fees without first assessing a penalty for vexatious refusal to pay. Non-Royalty Shoe Co. v. Phoenix Assurance Co. (Mo.), 210 S.W. 37, 42.
OPINION
Nora Spillman, plaintiff, widow of Carl Spillman, deceased, sued Kansas City Life Insurance Company, defendant, for benefits claimed to be due her under the "double indemnity" clauses of two life insurance policies issued by defendant on the life of deceased. Trial to a jury resulted in a verdict and judgment for plaintiff. Defendant appeals.
Defendant issued two life insurance policies to Carl Spillman and plaintiff was the named beneficiary in each of said policies. Said policies were in full force and effect December 26, 1941, when insured died as the result of a gunshot wound, self-inflicted. Each of said policies provided for payment of a death benefit of $ 1000, and for double that amount if insured's death was accidental as therein limited. Plaintiff executed and delivered to defendant December 30, 1941, proofs of death, wherein it is recited that the cause of death was "self inflicted" by deceased's own hands. Defendant promptly paid to plaintiff the sum of $ 2000 and took her release and receipt, and she surrendered said policies to defendant, furnished no further written proofs of death, and made no further written demand for payment of benefits.
There was substantial evidence tending to prove that insured was insane at the time he took his life by shooting himself and that, prior to institution of this suit, plaintiff's attorney visited the office of defendant, examined the policies sued on, and made demand for payment of the double indemnity benefits provided therein for accidental death which defendant refused to pay.
The rider upon which this lawsuit must be decided, reads as follows:
"If the death of the Insured shall result, independently and exclusively of all other causes, solely from bodily injury, effected directly by external, violent and accidental means, . . . and if claim be made therefor and satisfactory proof thereof submitted to the Company at its Home Office before surrender of this Policy, the Company will pay, . . . the sum of Two Thousand Dollars, . . . provided, that there shall be no liability hereunder for death resulting from self-destruction, while sane or insane, . . . or directly or indirectly, wholly or in part, from poisoning, infection or any kind of illness, disease or infirmity, . . ."
Defendant first contends that its offered demurrer to the evidence should have been sustained because "insured's death resulted, directly or indirectly, wholly or in part, from illness, disease or infirmity; a cause of death which was expressly excluded from the coverage of the double indemnity riders in each policy."
There was medical testimony tending to prove that insanity is a mental illness or disease. It is argued that insured would not have taken his life but for the disease from which he suffered and that, therefore, insured's death was, indirectly at least, due to illness. Defendant concedes that suicide is no defense because of the provisions of Section 5851, Revised Statutes Missouri, 1939.
In determining whether or not the cause of death was accidental the law will not go further back in the line of causation than to find the active, efficient, procuring cause. The maxim, cause proxima non remote spectatur, will be applied. [Fetter v. Fidelity & Casualty Company, 174 Mo. 256, l. c. 268, 73 S.W. 592, l. c. 593, 61 L. R. A. 459, 97 Am. St. Rep. 560.]
In the case of State ex rel. Prudential Insurance Company of America v. Shain et al., 344 Mo. 623, 127 S.W.2d 675, l. c. 678, insured had accidently consumed water impregnated with typhoid germs. Typhoid fever followed and insured died. In holding that the death was not accidental the court said: "Common understanding would force the conclusion that typhoid fever, the disease, was the proximate, procuring cause of death." (Italics ours.) In the case of Roberts v. Woodmen Acc. Co., 129 S.W.2d 1053, the policy provided that insurer ". . . shall not be liable for . . . death resulting, wholly or partially, directly or indirectly from . . . disease, . . ." We, in effect, applied the above rule and held that insured's death was accidental although he had a diseased and enlarged spleen (from which he eventually would have died) but for which the injury received when he accidentally fell would not have caused death. We held that the proximate cause of death was the accidental injury and not the disease.
Defendant cites and relies on Fields v. Pyramid Life Insurance Company, 169 S.W.2d 111, decided by this court. The suit was to recover for accidental death and the policy excluded liability for death by self destruction while sane or insane, or by poisoning. Insured died from poisoning, self administered while insane. We held that the clause excluding liability for death by self destruction was wholly inoperative by reason of the statute but that it did not broaden the coverage provided in the policy; and that, since death by poisoning was not covered, there was no liability.
An insurance company may exclude from coverage death caused by any particular accident unless prohibited from so...
To continue reading
Request your trial