278 Mo. 154 | Mo. | 1919
This is an action by plaintiff as beneficiary on a policy of insurance issued by defendant, insuring one William Brunswick, the husband of plaintiff, against death by accident. Upon a trial by a jury, the verdict was for the defendant. From the resulting judgment plaintiff appealed to the St. Louis Court of Appeals, wherein, upon a hearing, the case was reversed for error and ordered remanded for a new trial. [See Brunswick v. Standard Accident Ins. Co., 187 S. W. 802.] The Court of Appeals, however, being of the opinion that the views announced by them in this case were in conflict with the opinion of the Springfield Court of Appeals in the case of Scales v. National Ins. Co., 186 S. W. 948, made an order transferring the case to this court, pursuant to the mandate of the Constitution. Hence, our jurisdiction.
The petition seems to be conventional. After averring formally the issuance of the policy, the petition sets out substantially the conditions of the policy under which the liability of defendant for accidental death of the assured shall accrue. These conditions, as the petition and the policy recite them, are that liability accrues in the event of the death of assured “resulting directly, exclusively and independently of all other causes from accidental bodily injuries.” The policy contains, following the above-quoted conditions, as to the cause of death, an exception, to-wit: “Except when self-inflicted while insane,” which is not set out, or in any ivise re-
The answer of defendant, so far also as it is pertinent to the questions mooted here, was an admission of the issuance of the policy and of the several annual renewals thereof as pleaded, and a general denial of each and every allegation (sie) contained in the petition.
The facts immediately surrounding the death of assured are meagre, but as far as these facts are shown, and so far as they are pertinent to elucidate the questions mooted on this appeal, run substantially thus: Assured on the morning of his death seemed to be in' the best of health. He ate his breakfast just before eight o’clock in the morning, and apparently was preparing to go to his work. After breakfast he went into the bed-room of plaintiff, who seems to have been ill, and the latter tied his neck-tie for him. He then went into a bed-room adjoining that of plaintiff. Some five minutes afterward, hearing an unusual noise from this room, plaintiff entered it and found assured lying on the bed in a dying condition. His neck-tie and collar had been removed. There were burns on his mouth and cheek and hand — the latter seemingly from having wiped his mouth with his hand. A glass and spoon were found on the floor near the bed on which assured was lying. While in this bed-room and a few minutes before he was found dying, he was seen folding a handkerchief. In a handkerchief which was found in his
The coroner, who was a physican, examined the body of assured some two hours after his death, and from the symptoms and the history of the case testified that assured came to his death from cyanide of potassium poisoning. The finding of the coroner’s inquest that assured came to his death by suicide, caused by swallowing cyanide of potassium, was’ offered, by plaintiff, but excluded by the trial court on defendant’s objection.
It will be necessary to state other and omitted facts in the course of the discussion of the points made by plaintiff. These will be set out in connection with the point to which they are apposite.
It is enough to say upon this contention that the •case was not tried below upon any such theory. Neither the pleadings upon either side, nor the instructions, nor the evidence, except the policy, contain the word suicide, and the policy has it only in the clause whereon the alleged right is bottomed to recover the lesser sum above-mentioned. Even in these days when the leaven of reform is working in all the law and the strife is toward a legal millenium, whereat every man shall be his own lawyer, one may not yet sue and cause the jury to be instructed upon one cause of action and then,
II. Complaint is made by plaintiff of the following instruction given for the defendant, to-wit:
AgTi™ifSuicide. “You are instructed that, even though you may find from the evidence that William Brunswick took cyanide of potassium, on the day of his death, and even though you may further find that his death was caused thereby, there is still no presumption in ^aw that his act in taking said poison, if you find that he did take it, was accidental, or that his death resulted from accidental bodily injuries. On the contrary, the burden is upon plaintiff to.prove that the death of said William Brunswick resulted, independently of all other causes, from accidental bodily injuries, and, unless she has proved such fact, she cannot recover, and your verdict must be for the defendant.”
In condemnation of the above instruction plaintiff urges, (a) that it substantially tells the jury that death by suicide is not an accident; (b) that the burden was upon plaintiff to prove that the death of assured was caused by an accident, and (c) that if the jury should find that assured’s death was caused by poison no presumption exists that such poison was taken accidentally. Taking the converse of each of the above propositions, plaintiff strenuously urges that the above instruction was erroneous as to all of them.
In resolving these contentions it is necessary to re-examine the facts, cursorily at least. By these facts we think the cause of assured’s death is fairly well-
The obvious inference arises, and in fact the testimony shows, that assured was fully cognizant of the deadly nature of cyanide of potassium. For the testimony is that only a few days before his death he had taken from his pocket crystals of some drug and in exhibiting these crystals to his partner in business had stated, in substance that it was cyanide of potassium and a deadly poison. No reason whatever for suicide is disclosed by the record; neither, on the other hand, are there any facts in evidence making for the theory of accidental taking of this poison. The assured is not shown to have been ill, or to have been intending to take
Upon these meagre facts how' stands the case upon the question of the correctness of the above instruction, and incidentally upon the right of plaintiff; to recover at all on a contract of insurance against death “resulting directly, exclusively and independently of all other causes from accidental bodily injuries, except when self-inflicted when insane?’’
In the light of the presumption in favor of sanity and the utter lack of any proof of insanity in the record, we go afield, in preserving the thread of our argument, to say that j.f assured took cyanide of potassium while insane his death was caused by an accident within the purview of the policy herein (Accident Ins. Co. v. Crandal, 120 U. S. l. c. 531; Tuttle v. Iowa Association, 132 Iowa, 652; Grand Lodge v. Wieting, 168 Ill. 408; Blackstone v. Ins. Co., 74 Mich. 592; Berger v. Ins. Co., 88 Fed. 241) and the above-quoted clause of that policy which excepts liability for death self-inflicted while insáne is rendered void by the express provision of Section 6945, * Revised Statutes 1909, and ceteris paribus recovery could be had by the beneficiary (Logan v. Casualty Co., 146 Mo. 114; Whitfield v. Ins. Co., 205 U. S. 489).
If, on the other hand, assured intentionally .swallowed cyanide of potassium, that is, if he committed suicide while sane, his death was not due to accident and his beneficiary can not recover under this policy, which bottoms the right to recover only for a death resulting from accidental injuries. [Williams v. Accident Assn., 133 N. Y. 366; Aetna Life Ins. Co. v. Vandecar, 86 Fed. 282; Tuttle v. Iowa Assn., 132 Iowa, l. c. 654; Laessig v. Travelers’ Assn., 169 Mo. l. c. 280; Lamport v. Ins. Co., 199 S. W. l. c. 1024.]
In case of insurance effected upon life by the usual life insurance policy, the fact of death, since such fact is the sole condition precedent to recovery, is alone pertinent, and Section 6945, supra, applies automatically to all cases of death by suicide, regardless of whether the assured was sane or insane at the time he killed himself, barring of course, the exception noted in the statute itself. But where the assured solemnly contracts in an accident policy that liability for his death accrues only when the cause of death shall be an accidental injury, nothing seems clearer than that Section 6945, supra, has no application; unless, as already stated, assured shall commit suicide while insane. In the latter event the death, being unintentional, is held to be accidental, and though suicide is expressly excepted by the policy, recovery can be had because of the saving provisions of said Section 6945.
Upon this phase, therefore, we conclude that the burden was .upon plaintiff to prove that the death -of assured resulted from accidental injuries, that is, that it was due to an accident. That such burden may some
“In other words, the contract of accident insurance primarily casts the burden upon the plaintiff to show that the death was accidental. It must be so pleaded and proved. If the defendant wants to avoid liability for an accidental death it must prove that the- death was due to a cause excepted from the operation of the policy; that is, that it was a suicide. In such cases there is no presumption of law that because the death was not due to suicide it was accidental. For it might not be due either to suicidet or accident. It might be natural. In such case, the defendant would fail in its contention that it was Suicide, and plaintiff would fail in his case because the death was not due to accident, and the contract only insured against accidental death. In fact, if there was- no plea of suicide, the plaintiff would have to prove accidental death. There would be no presumption of accidental death. The jury must determine the fact as to what caused the de'ath. There need not necessarily be direct proof or evidence of the cause. The cause may be found by the jury from facts and circumstances. But the cause of death is a fact for the jury. There is no presumption of law in such cases, further than the presumption against suicide; but even this presumption does not carry with it, in accident insurance cases, the further presumption that the death was accidental.”
When examined in the light of the facts and the points mooted and respectively held in judgment therein, neither the case of Logan v. Ins. Co., 146 Mo. 114, nor the case of Whitfield v. Aetna Ins. Co., 205 U. S. 489, militates conclusively against this view. This is so, because in the Logan case the defense was “that the death of said assured was caused while either
In the "Whitfield case the question whether the death was accidental and whether the burden of proving the cause of death to have been on this phase within the terms of the policy was not discussed. • The defendant in the Whitfield case specifically pleaded suicide as a defense. The Supreme Court of the United States held that there could no longer be such a defense made, because forbidden by Section 6945, Revised Statutes of Missouri of 1909. The burden resting upon the plaintiff to prove a cause of death falling within the contract of insurance, i. e., an accidental death was not ■adverted to by the court; it seems to have been tacitly assumed by the court that the death was accidental, although the reply of plaintiff in effect admitted that the assured therein was sane when he killed himself. It is regrettable that it was not pointed out wherein the language of said Section 6945 had the effect to create
While the above section makes absolutely void all stipulations exempting liability on account of suicide and all defenses bottomed on the fact of suicide, yet it nowhere relieves the plaintiff m an action upon a policy of accident insurance from making proof that the death of the assured was caused by an accident. In short, as forecast above, the section does not write into an accident policy a cause of action where none existed upon the facts. Granting for the sake of argument that the section (the applicability of which to accident policies, though now fairly well-settled, has been strenuously and ably combatted and denied) could have gone further and provided that “suicide by a sane person shall be deemed to be an accident;” it is enough to say that it does not so provide. If the Legislature desired to create a cause of action upon a policy of accident insurance where none existed within the obvious meaning of the plain language of such contracts it would have been easy to say so. Therefore, unless the courts are able to say that a death by suicide of a sane person is a death by accident, further legislation would seem to be called ¿or. There are no cases up to the present time so holding. Both the reason of the thing and the cases are the other way. [Williams v. Accident Assn., 133 N. Y. 366; Aetna Life Ins. Co. v. Vandecar, 86 Fed. 282; Tuttle v. Iowa Assn., 132 Iowa, l. c. 654; Laessig
Neither does the view we here announce conflict with the rule in Fetter v. Ins. Co., 174 Mo. l. c. 269. The latter case at most merely deals with the burden of adducing evidence. When the plaintiff has shown that assured died from cyanide of potassium poisoning self-administered, then the inevitable inference arose that death was caused by either accident or suicide, and plaintiff could not recover if the evidence (aided by the presumption against suicide) yet showed suicide till there was further evidence adduced showing that such suicide was committed while assured was insane.
We have here referred to, but left out of discussion or consideration, the effect and nature of the presumption against suicide, elsewhere fully discussed in the expression of our views'. And so we conclude that under the rules defining and delimiting stare decisis a.s that rule is announced in the case of State ex rel. Bixby v. St. Louis, 241 Mo. 231, the instant case may be, to the extent stated, distinguished from the Whitfield, Logan and Fetter cases, supra. If under this rule it be impossible to distinguish the Whitfield case (there are no difficulties as to the others) then we may content ourselves with saying that it is not binding on us in any respect, but at most only persuasive as the utterance of a great court, unfamiliar however, with many of the intricacies of our local statutes and rulings thereon.
■ But having shown that assured came to his death from swallowing cyanide of potassium, the inference, naught else appearing, that the act of swallowing this poison was either accidental or intentional, i. e., suicidal, inevitably arose. In such case and after such showing was it proper to instruct the jury that “there is still no presumption in law that his (assured’s) act in taking said poison was accidental?” It was clearly improper as an abstract proposition. Whether it was reversible error here, upon the concrete case made, depends upon whether there is upon the facts any room for the
Discussing this presumption and its effect, a majority of this court in the late case of Reynolds v. Casualty Co., 274 Mo. l. c. 96, said: “No legal proposition is more firmly established than that where the act which caused the death may be either accidental or suicidal the burden is upon the insurer to establish the. fact of suicide by a preponderance of the evidence, for the presumption arising from the love of life, which is created for its preservation, is, like every natural law, always within the contemplation of the courts. It follows, as is stated by Mr. Bacon in his work on Life and Accident Insurance (4 Ed.), sec. 438, that: ‘When circumstantial evidence, only, is relied on, the defense fails unless the circumstances exclude with reasonable certainty any hypothesis'of death by accident, or by the act of another.’ [Boynton v. Assurance Society, 105 La. 202; Shotliff v. Modern Woodmen, 100 Mo. App. 138; Norman v. United Commercial Travelers, 163 Mo. App. 175; Almond v. Modern Woodmen, 133 Mo. App. 382; Claver v. Woodmen of the World, 152 Mo. App. 155; Hunt v. Ancient Order of Pyramids, 105 Mo. App. 41; Home Benefit Assn. v. Sargent, 142 U. S. 691; South Atlantic Life Ins. Co. v. Hurt’s Admx., 79 S. E. (Va.) 401; Life Ins. Co. v. Koegel, 104 Va. 619; Pagel v. Casualty Co., 158 Wis. 278; Huestis v. Ins. Co., 155 N. W. (Minn.) 643; Kornig v. Indemnity Co., 102 Miss. 31; Jenkin v. Life Ins. Co., 131 Cal. 121; Insurance Co. v. Nitterhouse, 11 Ind. App. 155; Insurance Co. v. Milward, 68 L. R. A. 285.]
“These cases, and many others to which our attention has been directed, amply sustain the doctrine stated in the proposition we have quoted from Mr. Bacon’s excellent book. In the Kornig case, supra, the court states it more fully as follows: ‘Where the defense of suicide is asserted against an action by a beneficiary on an insurance policy (a) the burden of proving that the deceased committed suicide is upon the defend
“It is a doctrine that appeals to every just and reasonable mind. It does not relieve the plaintiff from the burden of proving’ accidental death by a preponderance of evidence as a condition of recovery but requires that when he has put in evidence circumstances which prove that the _ death was either accidental or suicidal, the unreasonableness of the theory of suicide must receive due consideration in weighing it against the more reasonable and natural theory of accident.”
While the writer sharply disagreed with the judgment and with much that was said in the Reynolds case, yet since a majority of this court en bdnc ruled contrary to his views he is constrained by the view which he entertains of his duty under the Constitution to adopt as the law and follow the opinion of the majority.
The presumption against suicide is a rule of law deduced from convenience and necessity; it is based on the well-nigh universal human characteristic of love of life and fear of death, and it arises in a case whenever the cause of death is in issue and the evidence discloses a state of facts consistent with either accident or suicide. While the doctrine is a veritable presumption of law, it is sometimes and in some of the cases loosely spoken of as a presumption or inference of fact, and is put in the category of evidence. While a few authorities assert the converse, by far the better view is that it is not evidentiary in character; yet when invoked in the trial of a case, in a way as a constituent of evidence, it undoubtedly accomplishes a function of evidence, pro hao vice. It is to be invoked, or automatically rises, to be exact, when there is no convincing
If there is evidence both for and against suicide the presumption (unless, as some of the cases hold, and the reason. of the thing makes plausible, the evidence be equally balanced) has no place in the reasoning, as its very nature indicates; if therefore invoked,-, or present, it vanishes and the question is to be thereupon resolved upon the evidence. [9 Encyc. Ev. 885, and cases cited.] Obviously, the presumption against suicide cannot continue to exist in the face of evidence showing suicide, for such a view would be utterly subversive of the well-settled doctrine, figuratively but strikingly announced by Lamm, J., substantially, to-wit, that presumptions are the bats of the law which the light of evidence frightens and causes to fly away. [Mockowik v.Railroad, 196 Mo. . 1. c. 571.] Not only do the cases and the textbooks sustain this view (Er
Therefore, it obviously follows that such a presumption is not evidence, but that it is a mere term
As stated above, if there is among the facts in evidence in this case any room or place for the presumption, the instruction above set out was, on this phase erroneous. That is to say, if it cannot be said by us as a court, that as a matter of law the facts and circumstances proved show suicide and exclude any reasonable hypothesis of accident (Prudential Ins. Co. v. Dolan, 46 Ind. App. 40; Agen v. Ins. Co., 105 Wis. 217; Richey v. Ins. Co., 163 Mo. App. 235), then the instruction, which was, as we ha\Te already demonstrated, abstractly bad, was here, also concretely bad. Defendant put in no evidence whatever. Save and except the proved facts that a few minutes before assured was’ found in a dying condition due to his taking cyanide of potassium, he was seen to fold up a handkerchief; that after his death a large quantity of this poison was found in a
While the point is close and difficult, we are yet constrained to say, perforce the ruling in the Reynolds Case, supra, that the facts proven and which tend to show suicide are not sufficient to exclude every reasonable hypothesis favoring accident, and there is left, on account of the presumption against suicide, an inference of accident sufficient to take the case to the jury. If it ought as a matter of law to have gone to the jury at all, then it is elementary that it ought to have gone to the jury under proper instructions. It results that the giving of Instruction Two constituted reversible error. Let the case be reversed and remanded for a retrial not inconsistent with what we have herein ruled.
The foregoing opinion by Fabis, J., in Division is adopted by the Court in Banc.