Trembley v. Fidelity & Casualty Co,

• Decision Date: 07 June 1921
• Docket Number: No. 17202.,17202.
• Citation: 232 S.W. 179
• Court: Missouri Court of Appeals
• Parties: TREMBLEY v. FIDELITY & CASUALTY CO. OF NEW YORK.

232 S.W. 179

TREMBLEY v. FIDELITY & CASUALTY CO. OF NEW YORK.

No. 17202.

St. Louis Court of Appeals. Missouri.

June 7, 1921.

Appeal from St. Louis Circuit Court; Wilson Taylor, Judge.

"Not to be officially published."

Action by Ida J. Trembley against the Fidelity & Casualty Company of New York, a corporation. From a judgment for plaintiff, defendant appealed to the Supreme Court, from whence the cause was transferred (223 S. W. 887) to the St. Louis Court of Appeals. Reversed and remanded.

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

Jourdan, Rassieur & Pierce and Thomas Bond, all of St. Louis, for respondent.

BRUERE, C.

Defendant appeals from a judgment of the Circuit Court of the city of St. Louis, in favor of plaintiff. The suit is on an accident insurance policy issued by the defendant on the life of plaintiff's husband, Charles Z. Trembley.

In the court below the defendant raised a constitutional question, claiming that sections 7068 and 6945, Revised Statutes 1909, were unconstitutional. An appeal was allowed to the Supreme Court of this state. That court held, in an opinion reported in 223 S. W. 887, that the question raised was unavailing to invoke its jurisdiction and transferred the case here.

The petition is in the conventional form. It alleges the issuance of the policy by the defendant and that it insured the life of the deceased against death by accident, sustained from bodily injuries through accidental means, in the sum of $5,000 payable to the plaintiff; that the deceased, on the 9th day of April, 1916, while said policy was in full force, sustained such accidental injuries; and that such accidental injuries were such as to cause one or more gunshot wounds, in or about his head, which directly resulted in his death. The petition prayed judgment for $5,000, with interest thereon for 10 per centum damages for vexatious refusal to pay said policy, and for a reasonable attorney's fee.

The defendant in its answer admitted the issuance of the policy, but denied that the deceased sustained accidental injuries which resulted in his death. It alleged that the death of the assured, Charles Z. Trembley, was the result of a gunshot wound intentionally inflicted upon himself while of sound and sane mind. It further alleged that the terms of the policy sued on provided as follows:

"If the assured commits suicide, or if the death of the assured results from injuries inflicted by the assured while insane or results from injuries received by the assured while insane on from unnecessary and wanton exposure to injury the company will pay the beneficiary named herein one thousand dollars"

—and that under the provision of the policy it was only liable on account of the injuries resulting in the death of the assured for the sum of $1,000 and no more. There were other matters of defense set up in the answer, such as failure to give notice of the injuries sustained by deceased, failure to file proofs of the death of deceased, etc.; but these are not issues here. The reply put in issue the new matter set up in the answer.

The policy sued on contains a clause relating to the death of the assured by suicide; said clause is correctly set out in defendant's answer. At the close of all the case the plaintiff offered and the court gave a peremptory instruction directing the jury to return a verdict in favor of the plaintiff for the sum of $5,000, and interest thereon.

The evidence, relating to the death of the deceased, tends to show the following facts: The deceased, at the time of his death, lived with his wife and daughter in the city of St. Louis. He was engaged in the real estate business. For several months prior to his death he had been ill. During that time he was able to go to his place of business on an average of two or three times a week; the balance of the time he remained at home. He had been under the care of a physician, who" treated him for mental disorder. This treatment commenced about December 5, 1915, and continued until his death. He complained of a pain in his back, was mentally depressed, despondent, and seemed to have lost confidence in himself. During the last week of his life he was unable to go to his place of business and was more mentally depressed than usual. He worried over his condition and feared that he might become insane and would go to the insane asylum. He was ordinarily a very stout person, but his illness had pulled him down in flesh. He was not financially involved in any way, but left considerable property.

On Sunday morning, April 9, 1916, about 8 o'clock the deceased ate his breakfast with his wife. His conversation at the breakfast table had nothing unusual about it. After breakfast he went to the second floor of his home. No one was in the house at the time except deceased and his wife. He was last seen alive by the plaintiff about 20 minutes after 9 on said morning. He was then in the upstairs hall of his home sitting in a chair; plaintiff was with him and spoke to hint. He answered her, but had very little to say; he was despondent, and did not seem to want to talk. Plaintiff then went down stairs to attend to her cooking. Five minutes thereafter while thus engaged, she heard a noise, a certain crash, as if something had fallen. She did not immediately investigate its cause, but 5 minutes thereafter she went upstairs. She looked through the rooms for her husband, and then opened the bathroom door; deceased was lying on the bathroom floor with blood flowing from his mouth and a revolver lying near his right hand. The sight frightened her so that she did not enter the bathroom, but immediately called Dr. Morris. Dr. Morris came and found the deceased unconscious. The deceased was taken to a hospital and his injuries examined. It was found that the roof of his mouth on the left side was all shattered and torn as well as the upper jaw. An X-ray examination disclosed a bullet lodged in the lobe of the brain. In the revolver, found near the deceased, were two emptied chambers and three cartridges unexploded, upon which the hammer or plunger of the revolver had fallen. One of the exploded cartridges showed evidence of having been recently exploded. There were no external wounds or abrasions or powder burns on deceased's person, only the wound at the roof of the mouth and upper jaw. Deceased remained in a semiconscious condition until his death on...