Vormehr v. Knights of Maccabees of World
| Citation | 200 S.W. 76,198 Mo.App. 276 |
| Parties | SYLVESTER VORMEHR AND EMILY VORMEHR, Respondents, v. KNIGHTS OF THE MACCABEES OF THE WORLD, Appellant |
| Decision Date | 08 January 1918 |
| Court | Court of Appeal of Missouri (US) |
Appeal from the Circuit Court of the City of St. Louis.--Hon. Leo S Rassieur, Judge.
AFFIRMED.
Judgment affirmed.
R. P. & C. B. Williams for appellant; D. D. Aitken of counsel.
(1) Where the verdict of the jury is so manifestly against the weight of the evidence as to suggest passion, prejudice or partiality, the appellate court will not hesitate to order it set aside where the trial court has failed in its duty so to do. Harper v. St. Louis & San Francisco R. R. Co., 168 Mo.App. 296, 172 S.W. 55; Garrett v. Greenwell, 92 Mo. 125; Spohn v. Railroad Co., 87 Mo. 74; Whitsett v. Ransom, 79 Mo. 258; State v Primm, 98 Mo. 372; Baker v. Stonebraker, 36 Mo 345; Price v. Evans, 49 Mo. 396; Lehnick v. Street R. R. Co., 118 Mo.App. 611; Chitty v. Street R. R. Co., 148 Mo. 64; Mann v. Weiss, 185 Mo. 335, 170 S.W. 355; Smith v. Mystic Workers, 196 S.W. (Mo. App.) 62; Caruth v. Richeson, 96 Mo. 192; Spiro v. Transit Co., 102 Mo.App. 250; Richey v. Modern Woodmen, 163 Mo.App. 235; Gilmore v. Modern Brotherhood, 186 Mo.App. 445. (2) Defendant's demurrer to the evidence at the close of the whole case should have been sustained, because the evidence of defendant and plaintiffs showed overwhelmingly that the assured committed suicide, and because of the admission of the beneficiaries in the proofs of death that the cause of death was suicide, such admission not being relieved by any reasonably sufficient explanation. Smith v. Mystic Workers, 196 S.W. (Mo. App.) 62; Castens v. Supreme Lodge, Knights and Ladies of Honor, 190 Mo.App. 57; Stephens v. Metropolitan Life Ins. Co., 190 Mo.App. 679; Richey v. Modern Woodmen, 163 Mo.App. 235; Ageu v. Insurance Co., 80 N.W. 1020; Gilmore v. Modern Brotherhood, 186 Mo.App. 445. (3) Where the beneficiary sends in to the home office of the company proofs of death, which have attached thereto an affidavit or statement of a third party as to the cause or manner of death, this is binding on the beneficiary as an admission and preludes recovery. Castens v. Supreme Lodge, Knights and Ladies of Honor, 190 Mo.App. 57; Stephens v. Metropolitan Life, 190 Mo.App. 679. (4) It was misleading, prejudicial and erroneous to tell the jury, as was done in plaintiff's instruction No. 1, that in determining whether or not the assured's death was caused by suicide, the jury should not speculate or guess. Peperkorn v. St. Louis Transfer Co., 171 Mo.App. 709; State ex rel. v. Ellison, 268 Mo. 239, 187 S.W. 23.
Joseph Reilly for respondents.
In the case at bar, the burden of proof was on the appellants to show that the deceased intentionally and willfully took the cyanide of potassium to destroy his life. As there was no evidence introduced at the trial to show this fact, the jury were justified in finding against suicide. If the insured died from accident or disease, or even murder, they are liable for the payment of the certificate to the beneficiaries. The presumption of law is against self destruction. In the absence of proof that the deceased committed suicide this presumption holds good. Almond v. Woodmen of the World, 133 Mo.App. 382; Claver v. Woodmen of the World, 152 Mo.App. 155; Norman v. U. C. T., 163 Mo.App. 175.
Defendant is a fraternal beneficiary association, incorporated under the laws of Michigan and duly authorized to do business in this State as such an association. The action is one on a benefit certificate in the sum of $ 1000, issued by defendant to Albert S. Vormehr, plaintiffs' son, on February 25, 1908, wherein the plaintiffs are beneficiaries. The application of the assured, made a part of the contract between him and defendant, contained the following provision: "I also agree that should I die by my own hand, whether sane or insane at the time, this contract shall be null and void and of no binding force." The assured died on March 23, 1914; and after filing proofs of death, and upon defendant's refusal to pay the amount stipulated in the certificate, plaintiffs instituted this action.
The petition is in the usual form. The answer, among other things, avers that the assured died by his own hand, "having administered or taken a dangerous drug known as cyanide of potassium," by reason whereof all rights under the benefit certificate became forfeited. This is put in issue by the reply.
The trial, before the court and a jury, resulted in a verdict and judgment in plaintiffs' favor for the amount of the benefit certificate, with accrued interest; and the case is here on defendant's appeal.
The evidence discloses that the assured, a young man about twenty-seven years of age, resided with his parents, the plaintiffs herein, in the city of St. Louis. It appears that on the afternoon of March 23, 1914, he was alone at the plaintiffs' home, and, it seems, had been lying upon a couch. His body was found upon the floor under circumstances indicating that he had fallen from the couch. A physician, Dr. Labarge, was called, who found that the assured was dead and summoned the coroner. A post-mortem examination was made by the "autopsy physician to the coroner," Dr. Hachdorfer, who testified that the condition of the stomach and its contents indicated the presence of cyanide of potassium, and that in his opinion the assured died from the poisonous effect of that deadly drug. Likewise Dr. Labarge testified that the "bluish color" of the face of the deceased, which he observed, indicated--almost infallably--death from cyanide of potassium.
No cyanide of potassium or other poisonous drug was found upon the body or about the premises; nor was anything found which had contained any such drug. In fact nothing was discovered in connection with the death tending to cast any further light upon the matter.
The testimony for plaintiffs, in rebuttal, went to show that the assured "was always in good spirits," and that he was never known to express any intention of committing suicide. His mother, Emily Vormehr, one of the plaintiffs herein, testified her deceased son had been in good health; though on cross-examination she admitted that she had testified at the coroner's inquest that he had "often complained about his stomach and often complained about having a pain in his side."
Dr. Labarge testified that he had prescribed for the assured, four or five years before the latter's death, for stomach trouble; but that the ailment was "nothing serious." He said that the young man was sometimes cheerful and sometimes depressed, but had never, in his presence, made any reference to committing suicide.
A witness, a saloon keeper, testified that the assured was in his saloon on March 23, 1914, between ten and eleven o'clock in the forenoon of that day, and said that he would return that evening; that the assured complained that he had had a "very bad night," said that he was taking medicine and that he was then leaving "to go to the doctor."
A witness, a friend of the assured, testified that he saw him about noon on March 23, 1914, and made an appointment with him to go a place of amusement that evening. And another witness, who had known the assured intimately for many years, testified that he was always of a very happy disposition and had "never said anything about being tired of living or committing suicide."
Defendant offered in evidence the proofs of death which had been sent to its home office by plaintiffs when laying claim to the amount named in the benefit certificate. These proofs of death, include as a part thereof an affidavit of plaintiffs wherein appear the following question and answer, viz: Q. "Immediate cause of death?" A. "Suicide." Plaintiff Emily Vormehr testified that when this affidavit was prepared in her presence by a notary, she was not asked this question and did not state that the assured died by suicide. And the notary public...
To continue reading
Request your trial