State ex rel. Bowdon v. Allen

• Citation: 85 S.W.2d 63,337 Mo. 260
• Parties: State of Missouri at the Relation of Agnes D. Bowdon, Relator, v. Perry T. Allen, Walter E. Bailey and Robert J. Smith, Judges of the Springfield Court of Appeals
• Decision Date: 10 July 1935
• Court: Missouri Supreme Court

85 S.W.2d 63

337 Mo. 260

State of Missouri at the Relation of Agnes D. Bowdon, Relator, v. Perry T. Allen, Walter E. Bailey and Robert J. Smith, Judges of the Springfield Court of Appeals

Supreme Court of Missouri

July 10, 1935

Writ Quashed.

Sam J Corbett and Shelley I. Stiles for relator.

(1) The opinion of the Springfield Court of Appeals complained of should be quashed, for the reason that, in its opinion, the Springfield Court of Appeals took the testimony of defendant's three witnesses on the question of suicide and held that that testimony conclusively established that Bowden committed suicide, as there was no explanation rebuttal or contradiction of them, and reversed and remanded the case with directions to enter judgment for only the amount of the premiums paid. This is in direct conflict with the controlling opinions of the Supreme Court of Missouri, in that said controlling opinions of the Supreme Court hold that the appellate court cannot assume, as a matter of law, that the testimony of witnesses is true, satisfactory or convincing to the jury, even though no one contradicts what has been uttered. Gannon v. Laclede Gaslight Co., 145 Mo. 516; Ford v. Ry. Co., 318 Mo. 723, 300 S.W 769; Gluck v. Abe, 40 S.W.2d 558; State ex rel Mo. Gas & Elec. Service Co. v. Trimble, 307 Mo. 536, 271 S.W. 43. (2) The opinion of the Springfield Court of Appeals should be quashed, because in that opinion that court usurped the province of the jury, and says in effect that that court believed the testimony of the three witnesses, whom the jury did not believe, as shown by their verdict, and in disregard of the verdict reversed and remanded the case with directions to the trial court to enter a judgment in conformity with its opinion and belief, and which is in conflict with the controlling opinions of the Supreme Court of Missouri, in numerous cases, including the controlling opinion in the case of State ex rel. Missouri Gas & Electric Service Co. v. Trimble, 307 Mo. 536, 271 S.W. 43, which holds: That an appellate court cannot usurp the functions of the triers of the fact and make a finding to suit itself. The only thing which an appellate court may do under such circumstances is to reverse the judgment and remand the case to give the triers of the fact an opportunity to weigh the evidence. State ex rel. Mo. Gas & Elec. Service Co. v. Trimble, 307 Mo. 536, 271 S.W. 43.

Ward & Reeves, Fordyce, White, Mayne & Williams and R. E. La Driere for respondents.

(1) The record in this case does not show affirmatively, as it should, that the opinion of the Springfield Court of Appeals is in conflict with the cases cited by relator. State ex rel. Cox v. Trimble, 312 Mo. 322, 279 S.W. 60; State ex rel. Shartel v. Skinker, 324 Mo. 955, 25 S.W. 472; Home Life Ins. Co. v. Miller, 33 S.W.2d 1102; New York Life Ins. Co. v. Waters, 154 Ark. 579; Newlin v. Railroad Co., 222 Mo. 391, 121 S.W. 125. The record does not show affirmatively on the facts that the opinion of the Springfield Court of Appeals is in conflict with the rulings of this court. (2) If this court finds that the opinion of the Springfield Court of Appeals conflicts because it is based on oral testimony, then it is evident that its opinion also conflicts, because it did not correctly rule with reference to the coroner's certificate, which was part of the proofs of death. Burgess v. Pan American Life Ins. Co., 230 S.W. 315; Kirk v. Met. Life Ins. Co., 336 Mo. 765; Whiteside v. Court of Honor, 231 S.W. 1026; Grey v. Independent Order of Foresters, 196 S.W. 779; State ex rel. Boeving v. Cox, 310 Mo. 367, 276 S.W. 869; State ex rel. Vulgamott v. Trimble, 300 Mo. 92, 253 S.W. 1014; State ex rel. Shawhan v. Ellison, 273 Mo. 218, 200 S.W. 1042; State ex rel. Continental Ins. Co. v. Reynolds, 235 S.W. 88; State ex rel. Kansas City v. Ellison, 281 Mo. 667, 220 S.W. 498; State ex rel. Hayes v. Ellison, 191 S.W. 53; State ex rel. Am. Mfg. Co. v. Reynolds, 194 S.W. 878, 270 Mo. 589.

OPINION

Hays, J.

The relator, Agnes D. Bowdon, seeks by our writ of certiorari to quash the opinion and record of the Springfield Court of Appeals in the case of Agnes D. Bowdon v. Metropolitan Life Insurance Company, 78 S.W.2d 474, lately pending in that court. In the circuit court the relator recovered a judgment and verdict for $ 1000. This judgment was on appeal reversed and remanded by said Court of Appeals with directions. As grounds for quashal of said opinion the relator charges that the same is in conflict with several specified decisions of our court. The case was heard on a former appeal and is reported in 59 S.W.2d 787. We look to the assailed opinion for the facts, and only to it.

The action reviewed by the Court of Appeals is based on a policy of insurance, an Arkansas contract, of date August 12, 1929, of said insurance company, insuring Dewey B. Bowdon, deceased, naming his wife, the said Agnes D., as beneficiary. The insurance company's answer to the petition alleged that the deceased brought about his own death by suicide, the answer basing the defense on a provision of the policy which reads: "If the insured, within one year from the date of issue hereof, die by his own hand or act, whether sane or insane, the liability of the company hereunder shall be limited to an amount equal to the premiums which have been received, without interest."

On February 5, 1930, the insured was run over and killed by a passenger train, near Truman, Arkansas. An inquest was held in the county where the death occurred and the coroner's jury's verdict was "that said Dewey B. Bowdon came to his death by intentionally jumping in front of a Frisco passenger train No. 108." The verdict was by the insured's widow attached to the proof of death of her husband as made by her to the insurance company.

In the opinion we find the following recital of the "undisputed evidence" and authorities under which the case was ruled, and the ruling itself; the ruling being to the effect that at the close of the whole case the trial court should have directed a verdict for the plaintiff in the amount of premiums paid on the policy:

"Counsel for appellant states in its printed argument that the only real question in the case was whether death was suicidal, and that on that issue there was no conflict in the evidence.

"If the foregoing statement be correct, there is nothing further to consider in this case.

"There were but three witnesses who testified upon the suicide feature of the case, to-wit: Clyde A. Houston, Curtis Hurst and Leo Alberto. While in some minor details there was apparently some difference as to what the witnesses saw of the conduct of deceased, within the space of a half minute to a minute of the time immediately preceding the striking and killing of deceased by the railroad train, yet in substance the testimony was practically the same.

"The first, Clyde A. Houston, said he was twenty-seven years of age and lived a mile and a quarter from Herget. He had lived around Jonesboro all his life. That he recalled seeing deceased February 5, 1930, in Nettleton, at about eight o'clock in the morning. That he saw him later that day at the railroad crossing near where he was killed; he was then fixing a flat tire. Witness turned in on that crossing himself, and was walking alone. That he did not speak to deceased when he passed him; that, as witness passed deceased, the latter was standing at the left front wheel of his car. That, when witness stepped off his truck, deceased turned and went back behind his car. Witness next saw him when the train whistled at Herget. By that time deceased had walked from the highway to within about five feet of the track, where he stood until the train got something like 2 1/2 poles from him, when he made a spring and jumped in front of the train, landing in the middle of the track, between the rails with his head toward the engine. It was the Sunnyland passenger train approaching, which is a fast train, running from Memphis, through Jonesboro to Kansas City. There was nobody with deceased when witness saw him at the gate to the crossing, nor when witness saw him approaching the railroad track, and that there was no other person around that witness saw, except Curtis Hurst. They were about 150 yards from the crossing, and were both looking at the train, when deceased jumped in front of it. They were on the north side of the railroad, and the highway is on the south side. That the train whistled for Herget, which is a plantation commissary that the Sunnyland passenger train does not stop there. That, when witness first heard the train whistle, deceased was over at his car. That after the train whistled, the deceased came walking up towards the track, stopped before he reached the rails, and was looking toward the train. He was about five feet from the track when he stopped, at the time the train was crossing the trestle, about a quarter of a mile away. While the train was traveling this quarter mile, deceased stood beside the track, with his hands on his hips, looking toward the train. He did not say anything that witness could hear, before he made the movement to get between the rails. That he made the leap to get between the rails when the train was about 2 1/2 telegraph poles away. The movement deceased made was a swift one. He did not stumble or fall between the rails, but he jumped, and as he did so he slung his hands like that (indicating) making a jump. When he landed between the rails, he was on his feet. He threw his hands back and fell toward the engine on the track and on his back, throwing his hands back from his head, and just as his head went down between the rails the train went over him. This occurred about 9:08 A. M.

"Curtis Hurst, who was the next witness, stated he was...