*1 TERM, 1921. Bennett v. Acc. Standard goods shipped This not case is a where the were to be anything, indicate that installments, nor is there par- shipper knew that the for a lumber was used to be purpose. ticular proceeded
It is evident an trial court theory erroneous of the law. judgment
The Commissioner recommends that the cause be reversed and reminded. foregoing opinion PER CURIAM:—The Nipper, opinion adopted as the
C., is court. judgment accordingly circuit re- court cause remanded. versed Becker
Allen, Daues, J.J., J.,P. concur. BENNETT, D. N. BEN FREDERICK HARRIS Respondent, NETT, Guardian, THE STAND COMPANY, ARD INSURANCE ACCIDENT Appellant. Corporation, Appeals. Opinion January 3, Filed 1922.
St. Louis Court Sufficiency. Accident Insurance: Evidence: an INSURANCE: 1. In policy on accident insurance defended on action founded ground attempt com- resulted from an uphold judgment suicide, held sufficient to mit plaintiff. favor Theory: Adopted Appeal. Trial on APPELLATE PRACTICE: 2. Where policy insurance on an action an accident was tried founded theory misrepresentation (section 6142, statute Re- theory apply policy, the did not to the trial 1919) Statutes vised appellate adopted court. will be Apply Accident Insurance: Renewals: Warranties: INSURANCE: Policy Original Where Date was Issued. an accident insurance issued, receipt policy wherein it was and a renewal renewed agreed in consideration of truthfulness issued that same was original policy, of which one that date warranties policy being no of accident insurance the effect that statements or.,renewal ev'er canceled had been to insured issued theretofore company refused, another had the fact that thereof A.—6 209 M. APPEAL REPORTS, MISSOURI
Bennett v. Standard Acc. Ins. Co. original policy been canceled after tbe date of tbe was not avail- defense, able as a where the no defendant in its answer made renewal, warranty claim of breach of based contract *2 warranty regard allegations but its in that related to breaches of original policy the time the was issued. Knowledge Agent -:-: Warranties: of 4. of Untruthfulness: Accepting Retaining agent Premium: If an Waiver. the warranty company insurance knew that the accident insured’s policy, accepted and still the was untrue issued and retained the e, premium, this to would amount waiver. Insurance: Burden of Proof: 5. INSTRUCTIONS: Accident Mislead- ing. policy, an an insurance In action on accident the where jury by one instruction tells the the burden on the court by accidental, plaintiff to that were another show the jury -tells the that the burden was defendant to instruction attempt the from an the fact that resulted establish clearly suicide, to the were commit two instructions calculated to say jury party jury, which the as the would be unable mislead proof. carried the burden of Suicide: Insurance; Accident Defenses: Instruction Incon- 6. -: policy, instruc- an action on an accident insurance an sistent. In jury determine unable to whether tion that injuries the if by by intentional act or some other his own were caused unknown, they means, defendant cannot find for or causes then -suicide, that inconsistent with an instruction its defense plain- jury to determine whether if unable told person in the room turned on other tiff or some found, should in favor their verdict be then , defendant. ac- In an Should not be than Evidence: Given. -: Broader 7. policy, evidence where there nowas accident insurance on an tion himself, insured, on the inadvertence turned that the case any so, or any person did inadvertence gas, inferred, instruction could facts such evidence theory should than evidence is broader .and such based given. not have been Pay: Must Refusal Vexatious Insurance: Accident INSURANCE: on an In an action Cause. Reasonable and Without Willful points strongly to policy, evidence where insurance accident suicide, attempted commit the insured fact trial, and failed prudent before man appeared to a facts to*pay with- willful and was both refusal defendant’s show pay, under refusal cause, vexatious issue reasonable out 1919, have been sub- Statutes Revised section jury. mitted TERM, 1921. y. Standard Ace. Ins. Oo. Appeal City Louis.— from the Circuit Court of St. Hogan, Judge.
lion. Granville Reversed and remanded. Hayden appellant.
M. U. (1) only power, It it is also is not within duty, of this court to search the record in this therefrom substan- determine whether there is support tial judgment verdict n ex rel. court entered thereon. State Sturgis, Bank v. Moore 559; v. 276 Mo. v. Railroad Com- pany, 268 31; Borack 231 W. Mosler Safe Phillips v. Traveler’s Insurance *3 App. 113 Mo. v. Adams, 717; Stafford v. Pickens Rail- App. 241 Go., Railroad, 125 Mo. Butcher 669; road v. App. v. 137; Hallen, Mo. State rel. Trust Co. 165 Mo. ex appellant (2) By 422.' on, terms sued respondent agreed speci- indemnity pay therein only disability that he “result- fied ing the event suffered bodily directly, exclusively injuries effected
from independently through causes, external, of all vio- intentionally except means, lent accidental when self- proving al- The burden inflicted.” respondent leged were effect- have been sustained through this State', under law in means, accidental ed rested Laessig
upon respondent. A., v. P. 169 Mo. T. v. 8; S. W. Newell Co., 212 262; Insurance Scales v. Casualty Brunswick v. 212 Fidelity Co., 991; & Lamport v. Aetna Ins. Mo. 154; 278 Co., Insurance Lamport Accident v. General 1020; 199 W. Co., S. 225 'Corp., Co., v. Insurance S. 19; Prentiss 272 Mo. Phillips Co., 947; 231 Nor- W. Insurance v. S. 695;W. Wright App. 175; 163 Mo. Travelers, Commercial man v. App. v. Mo. Goodes 457; 188 Travelers, Commercial v. Fidelity App. IT. Travelers, 330; Mo. S. 174 Commercial & Guar. Fidelity Grosvenor v. 946; Fed. Blum, 270 Co. v. (3) The trial court erred Casualty 629. 102 Co., Neb. & 84 209 APPEAL MISSOUBI BEPOBTS,
Bennett v. Standard Acc. Ins. Co.
submitting
judgment
this case to the
this
following
(a)
be reversed for the
reasons:
There
no
tending
is
substantial evidence
the record
to estab-
respondent’s
lish that
disability
bodily
from
in-
resulted
juries
through
effected
accidental means
the mean-
within
ing
policy.
See
cited under Point
authorities
2;
Mutual
Barry,
Accident Association v.
131 U.
100;
S.
Cooley’s
4
pp. 3156-3157;
Briefs on Insurance:,
New-
some v. Insurance Co., 143
785;
Ga.
Meister v. General
Accident; 179 Pac.
Erb
913;
v. Accident
232 Pa.
Co.,
App.
215; Phelan
Co.,
v. Insurance
38 Mo.
640; Collins
Fidelity
Casualty
App.
v.
&
63
Co.,
253;
Hester v.
Fidelity
Casualty
App.
&
69 Mo.
186; Lovelace
Co.,
v. T. P. A. Co.,
86 v.
Bennett
Standard Acc. Ins. Co.
v. Ellison et al., 272
571;
Mo.
State
rel. Coal Co. v.
ex
Ellison,
Railway
Lee and W. respondent. Ediuards for being compos mentis and C. Plaintiff
BIGGS, non against guardian, judgment acting through a obtained his ap- which defendant of from $1930, defendant sum peals. pol- an insurance on accident The is founded action twenty-five indemnity
icy provides weekly of which a bodily injuries resulting disability from for total dollars independently directly, exclusively of all and effected through and external, violent accidental other causes weekly judgment represents indem- means. $1300 hospital expenses; nity $630, the balance was as- and damages jury penalty way as in the sessed a pay. attorneys’ fees for vexatious refusal clearly plaintiff It was established that received injuries totally of inhal- him a result disabled as which illuminating gas. ing inhaled ac- Whether cidentally voluntarily by his act the mooted own question is made No contention in the case. that the evi- Defendant asserts at the time. insane injuries conclusively re- shows that
dence attempt an commit suicide and sulted to warrant the sub- was insufficient theory of an ac- of the cause to on mission demurrer to the evidence should hence its cident, sustained.' have been may The thus:
The facts be summarized indemnity provided a death well disabil- which ity indemnity, 27, on March was issued year. It one was at end in force for 1915, remain period year additional twelve for an renewed 27,1916. received Plaintiff and after March months from September totally 25, him injuries disabled on his having a married man was 'a time he at which daughters. wife two APPEAL MISSOURI
Bennett v. Standard Acc. Ins. Co. prior injuries In 1915 room rented a at the apartment residence of Mrs. Janez, build- an ing city situated at 5700 Clemens of St. avenue, in Louis, and from then the time of resided living family, there and was with his who were at city Chicago. the time of his The build- ing apartments referred to each contained six on—two through building with a hall floor, the center of the apartment apartment each side. Mrs. occupied building Janez was on west side building facing Immediately first floor—the the east of the north.
building there was a sidewTalk lieu *7 the boundary and which the street formed east of the "Way block. This sidewalk was called and ex- Cabanne northwardly tended from Delmar avenue for several yard building blocks. At the rear of the was a and public immediately yard running alley south parallel with Clemens avenue. September, giv- contemplated
In Mrs. Janez up ing apartment plaintiff her and so informed Ben- the making quarters. necessary nett, for him to secure new Friday, September On Mrs. 22,1916, Janez informed Ben- following Tuesday, September nett that on the 26th, she apartment required would vacate the and that would be Saturday, to At move. the time she told him also September city 23rd, she would leave the but re- would evening Monday, Septem- turn about six o’clock on the city 25th. She as and ber left stated returned to the apartment shortly Monday. after six o’clock on When opened apartment gas she the front door of her “the my expressed by face,” burst her. She found the gas immediately rooms filled and with went to kitch- upon opening the door thereof en; found the air she tfiat was and fresh she then noticed that the.kitchen leading door to Bennett’s room closed; was that after rapping plaintiff calling on the and to door re- and ceiving opened reply no she door and the nightclothes was found bed with his on and uncon- breathing heavily. scious but still and alive Mrs. Janez TERM, Acc. Bennett v. Standard including Vineyard others, also summoned Dr. and plaintiff’s gas-jet inwall on the time a brother. At the gas escap- was turned on and bedroom was im- ing. but The room closed windows mediately opened- turned off. thereafter hospital, he hover- where to a The was removed finally days, but ed between life and death several partially was men- trial he time of recovered. At the gas poisoning tally and un- unsound as- a result to able attend his own affairs. that inside
At the time to it discovered referred adjacent one of the windows of Bennett’s room and belonged which had which the window was a-screen placed inside room. screen been removed and top hung by from of hooks referred means bottom which also a hook in the center at the had ring into a sill. about center went on window Just over the hook which lower sash the screen and th.£ small cut attached screen the window sill was a long. about an inch half On the window sill inch or and a open found an knife and beneath window the extending step-ladder outside a from the sill window partly ground, step-ladder while obstructed a tree was visible the sidewalk referred passed Way along people known Cabanne *8 apartment, to and fro. Near the door of a front con- room was found his siderable distance from Bennett’s pennies. keys and a trousers, contained his' In few across hall room of Mrs. Janez -from Bennett’s on a was the bed. Mrs. had room revolver found Janez packed preparatory giving previously belongings her belonging up apartment. However, a trunk to Mrs. trays opened had therefrom removed Janez been belonging nothing placed her was bed, missing; her room the dresser also drawers were found open, although leaving. before she had closed them property, packed They, no she had however, contained any- belongings. There no evidence of was of her most thing being In the room. disturbed in Bennett’s bed- APPEAL REPORTS, MISSOURI Bennett v. Ac<5. Standard clothing piece gauze bed of cloth was found a B.ennett’s large the size of a handkerchief odor which contained the of chloroform. No for chlo- bottle or container light was A found. roform overcoat of Bennett’s hanging found belonging in his room. A coat and vest they him was never nor were ever able to locate found, stickpins, eye-glasses. money his cuff No buttons pockets, although in his found he trousers had cashed Saturday previous. a check on the brother testified that he did not know that owned the although revolver or the bone-handled knife referred to, opportunity knowing meagre. his such facts was
As far as evidence discloses no one saw Monday prior discovery on the referred to to his day. Mrs. late in Janez the afternoon of that On Sun- day, day injury, spent before he his afternoon at city his mother’s house Louis, where he St. family plans with the about for the conversed next few days, planned and where he that time1 to return to at his day, Monday, house mother’s the next on and settle some having difficulty they repairing with workmen at the a house, and time drew contract for the work- sign. daughters men to As stated, wife and Chicago daughters at one time, Sunday special delivery plain- received letter from the saying Chicago tiff that he be in would and see them on Tuesday. following Sunday evening previous On injury, custom as had been his for some he time, took dinner with a Mrs. with Foster, whom had been years. intimate associate number Mrs. Foster neighborhood, boarded in the shown that it boarding dine with custom to was Bennett’s her her evening. every Sunday evening practically house On public Mrs. Foster referred to Bennett and dined at called friends North resturant and afterwards St. spent playing. evening At where card Louis, boarding left her o’clock Bennett Foster at about 121 Mrs. time one saw him this was the last before house, and *9 injured condition. he in his discovered was TERM, Bennett v. Standard Acc. Co. testimony parties the
From of the who Bennett saw Sunday good on the time in referred he at that was spirits. day engagement he with his On made that an day. brother and for the As stated brother’s next wife Chicago daughter he had he written to that would his following. parties Tuesday her at the see card game depress- appear referred that did not to testified he particular displayed ed and that hei interest his host’s going his children he see own that was and remarked daughters shortly. Sunday planned with he had On family clothing sister-in-law to send certain cago. to his Chi- ap- testimony of Foster it From did the Mrs. pear Sunday evening to Bennett had on the referred previous committing but on occa- suicide, intention of had that that he intention sions had indicated go sleep and and often stated he like to would up. never wake Monday plaintiff had the notified time before
Some apartment get several suits his tailor to send city going or leave the he to move clothes, of was kept tailor told what until the was should be Monday morning be- tailor them. The to do with messenger apart- the sént 10 and' o’clock tween getting purpose clothes, the of for the ment arranged previously front door with messenger get that the could left so unlocked was packed and found in a suit-case which were clothes, messenger At time, near the door. front morning, Monday 11 o’clock on which was about opened gas messenger of the odor when smelled apartment. He but saw clothes, took door anyone nothing time. At about else at Monday in the odor á:30 afternoon building. At other tenants one of the noticed building janitor noticed 6 o’clock about gas, one tenants, of the other who as did also odor investigation janitor’s attention, called apartment, thereupon cellar made gas leak discovered the cause *10 APPEAL MISSOURI REPORTS,
Bennett v. Standard Acc. Ins. Co. p. day time. Between and 6 m. of that the colored janitor apartment building neighbor- of another hood go testified that saw a white man from the side- he Way part walk known Cabanne to the rear apartments he to and in a crouched referred s.eemed position twenty came out in and about there- minutes thought but this witness after, at did not know man and time he was one the tenants. of indicating There is much evidence the record a motiye for suicide. Plaintiff been in- had a successful Agency surance man connected with Crane Insurance years, during years a for previous number of last few injury to his he had become embarrassed finan- grade. cially and his At business was on the down injuries employers, time his his he indebted to was on account of overdrafts, $2,000. the sum of He was administrator of his father’s estate and had used funds estate extent of was without He $2500. cash and time funds, his bank account showed Shortly injury a balace of $9.45'. before his his con- Agency nection with the had been terminated. Crane Besides his financial he had not lived with condition, family alleged year prior a his for a to the half separated He accident. his wife and was good terms. had former on Besides this he an alliance with another had woman been for devoting considerable time attention to his time and her, and the indicates that at about this time being their there was some chance of off. relations broke strongly The evidence had indicates his business disrupted, him; left home that he that his year without funds. About before he had life effected insurance his to the of $100,000. extent prior During August July to the he had premiums $20,000. out taken policies additional The on these days previous thirty to met. had About injured he time had a declaration he executed company he over to of trust wherein turned a trust directing policies, pro- insurance certain TERM, Acc. Standard for the ben- it and invested ceeds thereof collected turned same time he over efit of his At family. di- policies, insurance company the same trust thereof and invest proceeds it collect recting Mrs. Poster. for the benefit friend same complete statement of all foregoing is not purpose passing but it is sufficient for facts, ruling the court’s question propriety *11 to the evidence. On defendants’ demurrers refusing result plaintiff’s issue of whether were the circumstantial. accident, wholly of an evidence in the most favorable to light plain It must construed be drawn, it inferences and from must be reasonable tiff, it and in view of the in favor. thus Gauging degree proof by Supreme established rules as in we think the evidence sufficient such cases Court [Reynolds plaintiff. favor of v. judgment in uphold l. c. 201 83, 96, 274 Mo. Maryland Company, Casualty Ins. Acc. W. Brunswick Standard S. Parker v. Aetna c. 213 S. Life 154, l. 172,
Mo. W. — (not yet officially 232 W. —, reported).] S. cases evi An that in these examination will-show if stronger, dence suicide was indicating strong, in the case, yet present Supreme thau^the Court of accident or one said suicide was question may for the What Brunswick case jury. was said proven which here, viz.: “The facts tend said every are not to exclude suicide sufficient reason show accident, there left, able hypothesis favoring suicide, an inference presumption against account jury.” accident the case to the sufficient take [An v. Business Acc. Ass’n. (Sup. Ct.), drus Men’s yet 70, officially reported.] its demurrers have
Defendant asserts com- breaches of given warranty been because certain policy applying mitted in it rendered void. thereof, renewal cause seems the misrepresenta- have on the theory been tried (R. 6937, Statutes 1909 tion section statute, Revised 209 MISSOURI APPEAL REPORTS, Bennett v. Acc. Standard 6142) policy. 1919, section apply did not This to the being adopted theory, the trial it will be here, and it will unnecessary question rule on the whether the statute had effect on the situation.
One of the breaches relates ato statement made orginal application policy suit, for the policy is dated March 27, 1915, which statement towas the effect that no of accident insurance issued to him had canceled or re- ever theretofore been newal thereof refused. The defendant offered evidence tending August, Fidelity tó show that in & Cas- ualty Company policy. an accident It canceled bewill noted that this cancellation occurred after the date original policy. However, defendant asserts that in receipt plain- March, a renewal 1916, when was issued to agreed tiff, that was that same was issued in considera- tion that date of the truthfulness warranties original policy. The answer to this is that de- fendant its answer claim of made no breach of warran- ty allegations based on the contract of but its renewal, regard warranty in that related to breaches of at the time original policy Fidelity was issued. The & Cas- *12 ualty Company policy until was not that canceled after original policy of date, so at the time the issuance of the by plain- representation warranty the made suit or the was true. tiff plaintiff application represented
The in the also that temperate. According habits correct his were true; the not there evidence this was was also evi- prove tending agent Crane, that L. dence of cy, the Charles signed company poli- who the defendant wrote the plaintiff’s knowledge of had conduct at time the the policy plain- the written. He informed was of the was knowledge part conduct, tiff’s the and in of such view his on company up warranty breach cannot set such as a agent defense to claim. the defendant the If of the knew warranty policy, that the accepted and still issued was untrue the premium, retained the this would amount escape liability could a and defendant waiver, TEEM,
OCTOBEE v. Standard Aec. Ins. Co. [Rosenthal-Sloan thereof. account l. c. 671.] properly overruled. the were think demurrers
We Defendant complains The court of the instructions. jury that the the on behalf of the defendant instructed upon by imposed plaintiff the burden the to establish disability greater weight the evidence, that independently he causes resulted, claimed of all other gas. character from the accidental inhalation In this plaintiff he that was disabled case claims where showing through accident, an carried burden he that were due an accident. plaintiff’s gave re- court another
The instruction jury quest, that defense told that intentionally inflicted, self upon company to burden insurance rested the defendant prove greater weight by evidence that his in- juries by intentionally inflicted. caused own act inju- unquestioned plaintiff received
It was inhaling gas, by ries and that at time sane. only or he inhaled issue in case was whether accidentally intentionally. is un- The case a a life insurance where like a suit When death occurs and wherein the defense suicide. liability. prima 'In facie establishes results, death this pleads where the defendant suicide sort of upon it to burden establish defense, rests such pay engaged But here defendant defense. money disabled
a certain sum of in the event he was through By referred instruction an accident. the first plain- properly placed upon the court burden disability occurred reason tiff to establish case, name- was one issue accident. There ly, The court one instruction accident or suicide. to show the burden tells the *13 by injuries another accidental, were that the in- jury the on defendant tells the burden struction injuries from an at- resulted fact that the establish the tempt The two instructions referred to commit suicide. APPEAL MISSOURI REPORTS,
Bennett Standard Acc. Ins. Co. jury, clearly to are and from calculated to mislead the they say, they them would unable to when are read together, proof. party the carried burden of Lamport
The case Mo.—, v. Aetna Life Ins. Co.— 199 S. l. 1020, W. c. rules case of char in a this plaintiff disability acter where a an acci sues for under policy, upon plaintiff dent that the burden rests prove injuries that accident, of an were result and that the burden does in such rest case prove injuries the defendant to that the were intention ally inflicted.
By plaintiff instruction No. for the court told jury they that if are determine unable to whether injuries by Bennett’s were caused intentional act own they by or some means causes then unknown, other or By cannot find for defendant on its defense of suicide. given instruction No. 10 for defendant the court told jury they if unáble to that are determine whether plaintiff person gas or turned on the some other room then their verdict found, which the be in favor of the These defendant. two instruc- clearly are inconsistent. tions By instruction No. for were plaintiff’s injuries that if the instructed caused illuminating gas inhaling if found that he did intentionally injuries upon himself inflict said but that part result of inadvertence on the were the said of person other or insured or some was the result intentionally person committed, the act of some third you may that the then accidental find with- policy. meaning tended to establish either The evidence intentionally some released the that Bennett other apartment person while Bennett into went robbery purpose asleep and murder and re- gas. no evidence in the case There was leased gas, turned on the inadvertence nor himself person by any inadvertence evidence is there such facts could so or did *14 97
OCTOBEE TEEM, Bennett v. Ins. Co. Standard Acc.
inferred. The instruction the evidence broader than is given [Degonia and should not that form. have been l. 589, v. St. L. I. R. R. c. 564, M. & Mo. S. 807.] S. W. objections judgment, to are raised
There unnecessary them, are hut will to discuss as it likely upon trial. retrial occur If another same, is court should evidence do think the we alleged vexatious refusal submit issue providing (sec. pay. 1919) 6337, R. The statute S. penalty penal in and should be for is character strict points ly strongly construed. The plaintiff attempted to commit suicide. the fact that the prudent indicate to a reasonable and We think would plaintiff intentionally attempt to made an man de evidence failed to show that his existence. end pay wilful rea refusal was both and without fendant’s prudent appeared to man the facts sonable cause cause to had reasonable Defendant the trial. before litigate question right pay the loss and. a refuse [Non-Roy alty Company being penalized. Shoe without 210 W. Patterson S. Co., 277 Mo. Phoenix Ins. v. App. 44, American v. (St. Louis Court Fireman’s Miller
Moritz 261.] Appeals), 229 W. judgment stated, herein reasons For the for a remanded new trial. the cause reversed opinion oregoing C., f PEE CUEIAM:—The Biggs, judgment opinion the court. The adopted accordingly cause reversed and the court is circuit J., P. Becker Allen, trial. new remanded JJ., concur. Danes,
209 M. A.—7