Thompson v. Business Men's Acc. Ass'n of America

• Decision Date: 03 May 1921
• Docket Number: No. 2848.,2848.
• Parties: THOMPSON v. BUSINESS MEN'S ACC. ASS'N OF AMERICA.
• Court: Missouri Court of Appeals

231 S.W. 1049

THOMPSON v. BUSINESS MEN'S ACC. ASS'N OF AMERICA.

No. 2848.

Springfield Court of Appeals, Missouri.

May 3, 1921.

Rehearing Denied June 20, 1921.

Appeal from Circuit Court, Howell County; E. P. Dorris, Judge.

Suit by Susan E. Rollins Thompson against the Business Men's Accident Association of America. Judgment for plaintiff, and defendant appeals. Affirmed.

Solon T. Gilmore and A. I. Beach, both of Kansas City, and R. S. Hogan, of West Plains, for appellant.

Stephen C. Rogers, of St. Louis, and John C. Dyott, of Willow Springs, for respondent.

FARRINGTON, J.

This is a suit on an accident insurance policy in which plaintiff recovered judgment in the trial court for the full amount of the policy together with interest.

Appellant complains of error in that the trial court refused an instruction in the nature of a demurrer to the evidence, and refused two instructions on the burden of proof and the admission of some evidence offered by the plaintiff.

The suit was originally filed in the circuit court of Howell county on a policy of accident insurance issued by the appellant on the life of Elisha M. Rollins. The respondent, since the death of Elisha M. Rollins, has married and is now Susan E. Rollins Thompson. At a former trial the plaintiff recovered a judgment, and an appeal was taken to the Supreme Court, and will be found reported in the case of Susan E. Rollins v. Business Men's Accident Ins. Co., 213 S. W. 52. In that opinion it was held that that court had no jurisdiction of the appeal, and it was transferred to this court. The opinion disposing of the appeal in this court will be found reported in 220 S. W. 1022, where we reversed the judgment and remanded the cause for the reasons therein stated. The case went back to the circuit court of Howell county, where the plaintiff amended her petition, charging that Rollins was accidentally killed from the discharge of a single-barrel shotgun, causing the top of his head to be severed. To this petition, being the third amended petition, the defendant filed an answer denying that Rollins' death was the result of an accident and specifically pleading that he committed suicide. On this, the last trial, the plaintiff again recovered a judgment for the full amount with interest, and it is this judgment which is the subject of this appeal.

In order that the facts may be fully understood, we find from the record that in the first petition filed in this cause of action the plaintiff merely alleged that Rollins was accidentally injured and killed by the top of his head being severed. A demurrer to this petition was sustained and an amendment to same was made by the plaintiff alleging that he was killed by the discharge of a shotgun, and that the same was fired or discharged by the said Elisha M. Rollins with intent to commit suicide. The defendant again demurred, but the same was overruled, whereupon it filed an answer in the nature of a general denial and pleaded the suicide statute as unconstitutional. After this was filed the plaintiff then filed a second amended petition in which she alleged "that the gun was fired or discharged either by the said Elisha M. Rollins with intent to commit suicide or that it was accidentally or inadvertently discharged by said deceased, or some other person, the means, the fact, and the real cause being unknown to the plaintiff, it being one or the other, exactly which she is unable to state," and it was on this petition that the case was disposed of in this court in 220 S. W. 1022.

On the last trial, which was merely on an allegation of the plaintiff that the discharge of the gun was accidental, and a denial of same coupled with a plea of suicide by the defendant, the plaintiff introduced testimony to the effect that on the morning of the 5th day of April, 1915, Rollins was found in his store in the city of Willow Springs, Mo., lying with his back on the floor in the rear end of the store, dead with a shotgun lying by his side which had been discharged, and the top of his head practically torn off, and a part of his brains were found on the ceiling of the store. When found he was lying on his back with one foot up over the second rung of a ladder which was standing against a case in the store. It is shown that the deceased kept his gun on top of this case, and that to take it down from the top of this case would require one to step on the ladder to the second or third rung. It was further shown by plaintiff's evidence that the hammer of the gun was so that if it received a jar it would cause the gun to go off.

It appears that the deceased had sold his stock of goods or traded it for a farm, and that he was preparing to leave Willow Springs, but he had not yet made a delivery to the purchaser. On the morning of his death he left home about the same time as usual, in good spirits; that he went to the store, swept the sidewalk, and there had a conversation with a neighbor, which indicated that he was in good spirits and expected to pack up and leave. He had loaned the gun some time before, but it had been returned to him unloaded and had been placed upon the case against which the ladder was resting, at the foot of which he was found, as before described. A few days prior to his death he had purchased some cartridges for this gun. It is shown that he was in good health, in the prime of life, and that he had no financial difficulties or family relations which would tend to make him dissatisfied with life. One witness who viewed his body before it was taken from the ladder said that the top of the ladder was a little to one side, "as though when he fell the top slipped." This constitutes the facts as shown by plaintiff surrounding the death of her former husband.

The defendant, to sustain its plea of suicide, introduced in evidence the amended petition which had been originally filed in the case by the plaintiff in which it was specifically alleged that the deceased discharged the gun with intent to commit suicide. It further introduced the testimony of one of plaintiff's attorneys who stated that he filed this amended petition alleging suicide, did so after a thorough investigation, and decided that he had committed suicide. All of the evidence in the case shows that the plaintiff did not see the deceased when he was killed, and that the last time she saw him was at the home in the morning before he left for the store, and there is no testimony offered...