134 Mo. App. 547 | Mo. Ct. App. | 1908
Defendant is a fraternal benefit association, incorporated under the laws of the State-of Illinois and authorized to do business in the State of Missouri under the laws thereof. On July 6, 1897, defendant admitted George W. Wilcox, of Monroe county, Missouri, as a member of the order and issued to him its certificate No. 20547, by which it promised to pay his beneficiary, Paralea Wilcox, his wife, the sum of $1,000, on the death of the insured. Wilcox paid all his dues and assessments and otherwise complied with the laws of the order until March 21, 1906, on which date he died. Notice of his death and proofs of loss were duly furnished defendant and payment of the $1,000 insurance demanded. Defendant tendered plaintiff $400 in full satisfaction of its liability under the certificate. Plaintiff refused to accept said tender and this action was brought to recover the full amount of the policy.
The petition is in the usual form in such cases. As a special defense it is alleged in the answer, that
“This certificate was issued and made a liability upon the order to the persons named within, upon the expressed conditions that the insured shall comply with the constitution, laws, rules and regulations of the order, in force, or that may be in force hereafter, and that the statements made in the application for this certificate are true.
“This order will no.t pay the benefits of members who commit suicide, whether sane or insane, except it be committed in delirium resulting from illness, or while the member is under treatment for insanity, or has been judicially declared to be insane; but in all cases not within said exceptions, the amount of money contributed to the benefit fund by such members, shall be returned, and shall be paid to the beneficiaries out of said fund in lieu of the benefit; or if said application for membership or medical examination, or any part of them, shall be found in any respect, untrue, then this certificate shall be null and void, and of no effect, and all moneys which shall have been paid, and all rights which have accrued under this certificate shall be absolutely forfeited.”
The answer also states that the following by-law was in effect on the date the certificate was issued: “This order will not pay the benefits of members who commit suicide, whether sane or insane, except it be committed in delirium resulting from illness, or while the member is under treatment for insanity, or has been judicially
The reply was as follows: “Come now the plaintiff herein and for her reply to defendant’s first amended answer filed herein, admits the organization and incorporation of defendant under and according to the laws of the State of Illinois, but denies each and every other allegation in said answer contained.”
1. The trial resulted in a verdict for plaintiff for the full amount of the certificate. Defendant appealed. The death of Wilcox being admitted by the pleadings, defendant offered evidence to substantiate its special defense. This evidence leaves no room to doubt that Wilcox committed suicide by shooting himself in the head with a revolver. He was not under
R. G-. Bassett, a dentist, who had an office in the same building and adjoining that of deceased, testified he had known deceased for twenty years; that deceased would come into his office and stand up and go to sleep; that he had a linoleum on the floor of his office, in blocks and checks, and deceased would kneel down and try to pick them out with a nail or knife; that on the morning of the day he died, deceased said to him that he was feeling very badly that morning, “and ought to be home in bed, sick, could not eat anything,'very sick, ought to be in bed and was going home after a while and lie down and rest.”
Mrs. Mary Hayden, who had a millinery store in the same building, across the hall from deceased’s office, testified as follows: “I just went into his room as I had been in the habit of doing and he was sitting there writing and he got up and asked me to have a chair, and I told him No,’ and just walked around a moment. He insisted on me taking a chair. I did not — he said that he was sick and had not been home to dinner yet; that was about two o’clock, I suppose, as well as I remember, and he said that he did not eat anything that morning ‘except an egg and threw it up.’ I did not see Mr. Wilcox again until after he killed himself — suppose about fifteen minutes after I left his office until I saw him dead.” Witness also testified that on several days before she had noticed deceased and “he
On plaintiff’s behalf Dr. F. S. Carver testified be bad known deceased for about five years, bad treated him professionally and that bis bealtb was bad during all the time he knew him; that bis nervous system was broken down generally and bis general health was bad; that be did not seem to be “at himself” all the time but seemed to be delirious at times, would do things when be did not appear to know what be was doing, “would mumble for a few minutes, nobody would understand what be said, at least, I could not; I could not get any sense at all, just mumble to himself.” Witness stated that be saw deceased about two hours before bis death and talked with him; that be seemed to be “very much excited and very nervous and was shaking like an aspen;” that deceased told him be could use bis office, and bis mind seemed to be tolerably clear at the time; that “may be one day he would be delirious pretty much all day, maybe two or three days at a time, then for two or three days, apparently, bis mind would be in pretty good condition;” that deceased bad a bad stomach and bis nervous condition was bad and be did not think be would have recovered.
Dr. W. E. Johnson testified that deceased bad been in bad bealtb for two or three years prior to bis death, and said: “I didn’t consider the man hardly of sound mind for quite awhile before bis death; I noticed him doing things that I thought would not be done by a man of good mental powers, digging ditches around town, probing the ground and digging up in the street, that
E. C. Brooks testified that he helped deceased in his office and he was not able to write policies of insurance correctly, had heard he used morphine and liquor and had seen him under the influence of liquor.
S. H. Farrell testified that deceased acted peculiar and led him to believe he was not in his right mind; that he came into his (witness’) bank on the morning of the day he died and said he wanted a drink of water. “I told him where he could get a drink of water at the back end of the bank, and he went back there and got up along the corner, just picking round among things trying to find a bucket, and no bucket there, and I went and showed him and led him to the bucket of water, and he did not seem to be in his right mind. . . . After I took him back to the bucket of water he went to take a drink of water and said after he got the insurance business written up he was going to straighten up. He then walked up, dropped his pipe as he went out — he was smoking, and went out and left it here on the floor. That was the last time I saw him until he was dead.”
A crumpled piece of paper was found in a pocket of deceased’s clothing, on which he had made a pencil memorandum of his life insurance and where the policies would be found; also a memorandum of some commissions due him on insurance. The writing was not dated. On this evidence the court instructed for plaintiff as follows: “The court instructs the jury that unless you find from the evidence in the cause that George W. Wilcox did commit suicide, while not in delirium resulting from illness, your finding should be for plaintiff.” For defendant, the court instructed as follows: “The court instructs the jury that if you find from the evidence in the cause, that the death of George W. Wilcox, which is admitted by defendant herein, was caused by a leaden ball or bullet, fired from a revolver purposely discharged by the said Wilcox, with the intent and purpose on the part of him, the said Wilcox, to end his own life, and that at the time of firing the revolver, if so the jury find the said Wilcox was not in delirium resulting from illness, then and in that event, your verdict should be for plaintiff in the sum of four hundred dollars and no more.” Defendant insists that the evidence was insufficient to-warrant plaintiff’s instruction, contending that the evidence of Mrs. Hayden, who saw deceased just a few minutes before he shot himself, and who was the last person to see him alive, shows he was not delirious. Mrs. Hayden saw deceased only for a minute, heard him complain of illness but paid no particular attention to him. She was a non-expert and while her evidence is entitled to weight, it is not so overpowering and convincing as to conclusively overthrow the evidence of the two physicians and the civilian witnesses, whose evidence certainly tends to show that deceased, from excessive use of narcotics and intoxicants, or from some unknown cause, was in a most wretched condi
Defendant offered to read amended by-law No. 145, adopted in May, 1903, and to show that it was reenacted at a later period but before Wilcox died. On objections of plaintiff the amended by-law was excluded by the court. This action of the court is assigned as error. Wilcox accepted the certificate of insurance'containing a stipulation that he “agreed” to comply with the “constitution, laws, rules and regulations of the order in force or that may be in force thereafter,” and his application for insurance contained a like provision, hence his beneficiary is bound by the agreement, if it affects the certificate of insurance. This provision does not, in express terms embrace or even refer to the certificate of insurance, nor does it comprehend it by implication. There is nothing in the agreement that can be construed into a stipulation, that the terms of the certificate of insurance might be altered, modified or changed in the least particular. The agreement included only such by-laws, rules and regula