Trembley v. Fidelity & Casualty Co.

Decision Date27 June 1922
Docket NumberNo. 17856.,17856.
Citation243 S.W. 201
CourtMissouri Court of Appeals
PartiesTREMBLEY v. FIDELITY & CASUALTY CO.

Appeal from St. Louis Circuit Court; Benj. J. Klene, Judge.

"Not to be officially published."

Action by Ida J. Trembley against the Fidelity & Casualty Company of New York. Judgment for plaintiff, and defendant appeals. Affirmed.

Jones, Hacker, Sullivan & Angert, of St. Louis, for appellant.

Jourdan, Rassieur & Pierce, of St. Louis, for respondent.

DAUES, J.

This is an action on a policy of accident insurance issued by the defendant on the life of plaintiff's husband, Charles Z. Trembley. At a trial before the court and a jury there was a verdict on the policy for $5,000, and as interest thereon $1,555.83, and as attorneys' fees $1,500, making a total of $8,055.83. From a judgment rendered upon same this appeal is taken by defendant.

The petition is in usual form, alleging the issuance of the policy on June 28, 1909; that on April 9, 1916, the insured sustained an accidental injury, being a gunshot wound in the head which resulted in the insured's death on April 11, 1916. The petition prays for the full amount of the policy, to wit, $5,000, with interest, together with damages and attorney's fees for vexatious refusal to pay the policy.

Defendant's answer is a general denial.

This case has already run a long and circuitous course. The cause was first tried in May, 1917, in the circuit court of the city of St. Louis, resulting in a judgment for plaintiff. Defendant appealed from that judgment to the Supreme Court, asserting that constitutional questions were involved. That court held the constitutional questions raised as having been settled, and transferred the cause to this court. Trembley v. Fidelity & Casualty Co. of New York (Mo. Sup.) 223 S. W. 887. At the March term, 1921, of this court the case was submitted, resulting in a reversal of the judgment and the remanding of the cause for error of the trial court in directing a verdict for the plaintiff. Trembley v. Fidelity & Casualty Co. of New York (Mo. App.) 232 S. W. 179. The case was again tried, and plaintiff again prevailed, eventuating in this appeal.

The facts are substantially as follows: The insured, on April 9, 1916, was found in the bathroom of his home suffering from a pistol shot wound in his head, from which he died within two days. Plaintiff's evidence tended to show, and we think strongly so, that the insured became demented in October, 1915, and suffered from a mental affliction from that time until the date of his death.

Plaintiff, the widow of the insured, testified that she had been the wife of the insured since November, 1895; that her husband was about 48 years old at the time of his death; they lived at 5571 Bartmer avenue, St. Louis, with their daughter; that insured was actively engaged in and president of a real estate company; that prior to 1915 the insured was "always very healthy and very cheerful and never complained of any: thing up to October 15, 1915"; that his family life was happy and pleasant, and his living circumstances very comfortable; that in October, 1915, he developed extreme nervousness and inability to sleep; that he walked the floor day and night for about three weeks, and was unable to stay in bed; that he would take from three to four baths every night in order, as he said, to pass the night away; that he was unable to stay at the table long enough to finish a meal; that his hands trembled to such degree that he could not hold a cup of liquid to drink from same: having been sociable theretofore, be developed a strong antipathy for visitors and friends, and refused to see any one who came to the house to see him; that he was depressed more or less all the time thereafter; that during this time he was unable to give his business any attention whatsoever; that he would accuse plaintiff of having been seen on certain streets where, he insisted, she had gone to watch him to learn if he had clandestine meetings, and plaintiff says nothing whatsoever occurred to give her husband any basis for such apprehensions; he was in the habit of going to the Baptist Hospital to be weighed; this was to afford his physician information as to whether his patient was gaining under treatment; that the insured, with no cause whatsoever therefor, insisted that he would not go to the hospital any more because the doctor wanted to lock him up and confine him in a room; and that thereafter he refused to go back to the hospital. No suggestion had been made that he was to be kept at the hospital.

The insured expressed to his wife a very great worry, which he claimed was visited upon him because of a $10,000 life insurance policy which he said he had taken out in favor of their daughter, and which he had discovered, because of a similarity of the names, had been made payable to plaintiff instead of to the daughter, and he pleaded with plaintiff to promise him that in case of his death she would give the proceeds of this policy to their daughter. It appears that no such policy was ever taken out on the insured's life.

Insured would call up friends over the telephone and ask them to come and see him; then he would call them up and ask them to stay away. He very frequently would refuse to make any answer to conversation begun by members of his family. On one occasion he told plaintiff that if he ever asked her to sign any papers to absolutely refuse to do so, because he might ask her to sign papers which would convey the home away.

Plaintiff, addressing herself particularly to the circumstances surrounding the death of her husband, testified that after breakfast on the day of the accident she had been with her husband; that he was very despondent and would not answer her nor talk to her at all; that after leaving him for a moment she heard a crash. She returned and found the bathroom door closed, and upon entering same found her husband on the floor with a revolver lying at his side. He had been shot in the head.

Over the objection of defendant, this witness was permitted to testify that she did not believe her husband was at sound mind at the time of the accident. Plaintiff testified that she demanded the money due her under the policy from the insurance company, and that defendant refused to pay same.

The cross-examination of this witness brought out nothing substantially different from her testimony on direct examination.

Dr. C. C. Morris testified in behalf of plaintiff that he was a physician and surgeon, and superintendent of the St. Louis Baptist Hospital, and that he lived diagonally across the street from the Trembley home; that he treated the insured professionally, commencing in December, 1915, and continuing up until the time of his death; that in December, 1915, the insured called witness to come over to see him, and that he at once saw that the insured's features were pinched and that he was extremely nervous; that the insured said he could not sit down and tell his troubles to the doctor, and that he had not been able to sleep for nights. The doctor characterized the insured's condition as acute melancholia, and that he found no objective symptoms of any physical injury whatsoever. He admitted, however, that he was not an alienist or psychiatrist. This witness stated that he found nothing wrong with the insured's...

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    ...v. Dubinsky, 38 S.W. (2d) 530; Adamack v. Herman, 33 S.W. (2d) 135; Irwin v. McDougal, 217 Mo. App. 645, 274 S.W. 924; Trembley v. Fidelity & Casualty Co., 243 S.W. 201; Parker v. Aetna Life Ins. Co., 232 S.W. 708; East St. L. Ice & Cold Storage Co. v. Kuhlmann, 238 Mo. 685, 142 S.W. 253. (......
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