Opinion
No. 38519.
November 1, 1943. Rehearing Denied, December 6, 1943. Motion to Transfer to Banc Overruled, January 3, 1944.
INSURANCE: Accident Policy: Insane Suicide: Poisoning Excluded By Policy: Statute Not Violated. The clause in the accident policy excluding death by poison was not in violation of Sec. 5851 R.S. 1939, preventing the defense of suicide, and there can be no recovery on the policy when the death of the insured was caused by taking poison while insane. [Applegate v. Travelers Ins. Co., 153 Mo. App. 63, is overruled.]
Appeal from Clay Circuit Court. — Hon. James S. Rooney, Judge.
AFFIRMED.
Russell D. Farris, Wilson D. Hill and Calvin Kimbrell for appellant.
(1) The provisions of the supplemental contracts relative to double indemnity for accidental death which exempt the insurer from liability in case the death of the insured results from self-destruction while insane are invalid. Sec. 5851, R.S. 1939; Logan v. Fidelity Casualty Co., 146 Mo. 114, 47 S.W. 948; Brunswick v. Standard Accident Ins. Co., 278 Mo. 154, 213 S.W. 45; Andrus v. Business Men's Accident Assn., 283 Mo. 442, 223 S.W. 70; Aufrichtig v. Columbian Natl. Life Ins. Co., 298 Mo. 1, 249 S.W. 912; Whitfield v. Aetna Life Ins. Co., 205 U.S. 489, 51 L.Ed. 895 (2) The Missouri suicide statute applies to the supplemental contracts providing double indemnity for accidental death involved in this action. Logan v. Fidelity Casualty Co., supra; Brunswick v. Standard Accident Ins. Co., supra; Aufrichtig v. Columbian Natl. Life Ins. Co., supra; Whitfield v. Aetna Life Ins. Co., supra. (3) Self-destruction while insane was an accident within the meaning of the supplemental contracts involved. Logan v. Fidelity Casualty Co., supra; Brunswick v. Standard Accident Ins. Co., supra; Andrus v. Business Men's Accident Assn., supra; Aufrichtig v. Columbian Natl. Life Ins. Co., supra; Whitfield v. Aetna Life Ins. Co., supra; Scales v. Natl. Life Accident Ins. Co., 212 S.W. 8; Woodlock v. Aetna Life Ins. Co., 225 S.W. 994; Rodgers v. Travelers' Ins. Co., 311 Mo. 249, 278 S.W. 368. (4) It being alleged in plaintiff's petition that the death of the insured resulted from self-administered poison while insane, the death of the insured from self-administered poison, while insane, being an accident, and the provisions of the supplemental contracts exempting the defendant from liability, if the death of the insured resulted from self-administered poison while insane being invalid, evidence on the part of the plaintiff proving, and tending to prove, that the death of the insured resulted from self-administered poison while insane was competent and the court erred in rejecting her proof directed to that issue and erred in rejecting her offer of proof in regard thereto. Authorities cited under points (1), (2) and (3). Reynolds v. Maryland, etc., Co., 278 Mo. 154, 201 S.W. 45; Edwards v. Business Men's, etc., Co., 168 S.W.2d 82; Lemmon v. Continental, etc., Co., 169 S.W.2d 920. (5) The provisions of the supplemental contracts, seeking to limit or avoid liability in certain contingencies, must be construed most strongly against the defendant for the reason that their restrictive terms tend to narrow the range and limit the force of the principal obligations of the contracts. Renn v. Supreme Lodge, 83 Mo. App. 442; Howell v. Security Mut. Life Ins. Co., 215 Mo. App. 692, 253 S.W. 411; Mathews v. Modern Woodmen of America, 236 Mo. 326, 139 S.W. 151; State ex rel. v. Allen, 305 Mo. 607, 267 S.W. 379; State ex rel. v. Trimble, 327 Mo. 899, 39 S.W.2d 355.
Howell, Jacobs Howell, Floyd E. Jacobs, Chas. M. Howell, Jr., Virgil Yates, Katherine Halterman and Scott R. Timmons for respondent.
(1) Exceptions to coverage in double indemnity contracts attached to life insurance policies, should be construed as any other provisions. They should be given their ordinary meaning. The courts will not read into such exceptions ambiguities when none exist. Insured's death was admittedly caused by self-administered poison. The double indemnity contracts sued on except death caused "directly or indirectly by . . . poisoning." Scales v. Natl. Life Accident Ins. Co., 186 143 S.W. 948; Wendorff v. Mo. State Life Ins. Co., 318 Mo. 363, 1 S.W.2d 99, 57 A.L.R. 615; Beem v. General Accident Fire Life Assur. Corp., 231 Mo. App. 685, 105 S.W.2d 956; Reed v. Travelers' Ins. Co., 227 Mo. App. 1155, 60 S.W.2d 59; Dixon v. Travelers Protective Assn. of America, 234 Mo. App. 127, 113 S.W.2d 1086; State ex rel. Mutual Life Ins. Co. of N.Y. v. Shain, 344 Mo. 276, 126 S.W.2d 181; State ex rel. Prudential Ins. Co. of America v. Shain, 344 Mo. 623, 127 S.W.2d 675; Brock v. American Central Life Ins. Co., 44 S.W.2d 200; Cleaver v. Central States Life Ins. Co., 346 Mo. 548, 142 S.W.2d 474; Erich v. State Mutual Life Ins. Co., 16 A.2d 351; King v. N.Y. Life Ins. Co., 72 F.2d 620; Rasmussen v. N.Y. Life Ins. Co., 267 N.Y. 129, 195 N.E. 821; Diamond v. N.Y. Life Ins. Co., 247 A.D. 203, 286 N.Y.S. 625; Safe Deposit Trust Co. v. N.Y. Life Ins. Co., 14 F. Supp. 721, affirmed 84 F.2d 1011; N.Y. Life Ins. Co. v. Murrell, 65 F.2d 990; Kennedy v. N.Y. Life Ins. Co., 172 So. 743; Osburn v. Com. Trave. Acc. Assn., 265 N.Y. 671, 193 N.E. 438; Northern Trust Co. v. Central L. Ins. Co., 274 Ill. App. 551, certiorari denied by Ill. Sup. Ct., Oct. 23, 1934; Riley v. Inter-State Business Men's Acc. Assn., 184 Iowa 1124, 169 N.W. 448; Stone v. Physicians Casualty Assn., 130 Neb. 769, 266 N.W. 605. (2) The parties had the right to enter into this contract which in no way violates Section 5851, R.S. 1939, the Missouri Suicide Statute. Such statute deals in express terms with suicide solely as a defense. The suicide of insured was admitted in defendant's answer and was not set up as a defense. Brunswick v. Standard Accident Ins. Co., 278 Mo. 154, 213 S.W. 45; Scales v. Natl. Life Accident Ins. Co., 186 S.W. 948; Same case in Supreme Court, 212 S.W. 8; McReynolds v. New York Life Ins. Co., 122 F.2d 895; certiorari denied Jan. 5, 1942, see 86 L.Ed. 362; Langan v. United States Life Ins. Co., 344 Mo. 989, 130 S.W.2d 479; Gates v. Knights Templars Masonic Mut. Aid Assn., 198 Mo. App. 688, 202 S.W. 280; New York Life Ins. Co. v. West, 102 Colo. 591, 82 P.2d 754. (3) Even if the death of the insured had been covered by the supplemental double indemnity contracts, still the court was not in error in refusing to accept the proffered offer of proof that the insured was insane at the time he drank the poison. The offer of proof was too general and contained conclusions and not offers of evidentiary facts. Thompson v. Conrad-Gideon Special Road District of New Madrid County, 323 Mo. 953, 19 S.W.2d 1049; Rodgers v. Travelers Ins. Co., 311 Mo. 249, 278 S.W. 368; Seibert v. Tiffany, 8 Mo. App. 33; Williams v. Williams, 259 Mo. 242, 168 S.W. 242; City of Kirkwood v. Cronin, 259 Mo. 207, 168 S.W. 674.
The issue as presented is whether a beneficiary under accident insurance provisions which expressly exclude coverage for death caused by poison may recover the accidental death benefits where insured's death resulted from self-administered poison while insane. (We set out the policy provisions in the footnote.) The case is here upon certification from the Kansas City Court of Appeals. See Fields v. Pyramid Life Insurance Company, 169 S.W.2d 111. It is an action by the beneficiary for double indemnity under accidental death provisions of two insurance policies issued by the insurer to insured, her husband, the insurer having paid the ordinary death benefit. The facts are detailed in the Court of Appeals' opinion, correctly ruling against recovery.
"In event of death from accident as hereinafter defined the company agrees to increase the amount payable under this policy . . . provided such death results solely from bodily injuries, caused directly, exclusively or independently of all other causes by external, violent and purely accidental means, and provided also that such death shall have ensued within 90 days from the date of such injuries and shall not be the result of homicide, nor be caused directly or indirectly by self-destruction while sane or insane, poisoning, septicemia, infection, disease or illness of any kind, physical or mental infirmity, any violation of law by the Insured, military or naval service of any kind in time of war or by engaging as a passenger or otherwise in aviation or aeronautics."
Section 5851, R.S. 1939, so far as material here, provides: "in all suits upon policies of insurance on life . . . it shall be no defense that the insured committed suicide . . ., and any stipulation in the policy to the contrary shall be void." We have considered suicide by poisoning while insane an accident. Brunswick v. Standard Acc. Ins. Co. (Banc, 1916), 278 Mo. 154, 165, 213 S.W. 45, 47, 7 A.L.R. 1213; Scales v. National L. Acc. Ins. Co. (Banc, 1916), 212 S.W. 8, 9[1].
Plaintiff's position is that insured's death was an accident under the Missouri law, that the policy provision excepting liability in the event of "poisoning" has reference to poisoning while sane; and that plaintiff is entitled to recover.
Insurer defends on the ground, since all concede insured's death resulted from [282] "poisoning", that insured's death was not within the coverage of the policy, and that Sec. 5851 has no applicability to the instant issue.
That the instant policy provisions are not ambiguous in the circumstances before us, see Dixon v. Travelers Protective Ass'n, 234 Mo. App. 127, 133, 113 S.W.2d 1086, 1089; Scales v. National L. Acc. Ins. Co. (Mo. App.), 186 S.W. 948, 950[3]; Brock v. American Cent. L. Ins. Co. (Mo. App.), 44 S.W.2d 200; Cleaver v. Central States L. Ins. Co., 346 Mo. 548, 554, 142 S.W.2d 474, 477; State ex rel. v. Shain (Banc), 344 Mo. 623, 629, 127 S.W.2d 675, 678[7, 8]; State ex rel. v. Shain, 344 Mo. 276, 282[1], 126 S.W.2d 181, 183[1] Eirich v. State Mut. L. Assur. Co., 127 Conn. 252, 16 A.2d 351, 131 A.L.R. 1057, 1059[2, 4].
Counsel fail to direct us to and we find no ruling of this court on the precise issue. The beneficiary stresses the Missouri case of Applegate v. Travelers Ins. Co. (1910), 153 Mo. App. 63, 84, 132 S.W. 2, 9. Insurer stresses Scales v. National L. Acc. Ins. Co. (1916, Mo. App.), 186 S.W. 948, 950 [4, 7].
The beneficiary in the Applegate case, supra, sought recovery of the face of the policy for death by intentional suicide by poison of the insured, her husband, under a policy limiting liability "in the event of death . . . by . . . poison" to "one-tenth of the amount otherwise payable . . ."; together with provisions "that the insurance should not cover . . . suicide sane or insane . . ." Insurer sought to defend on the ground that since death was the result of poison, the beneficiary's recovery was to be limited to one-tenth of the face of the policy. The case held in effect that under Sec. 5851, supra, insurer was liable for the face of the policy on the grounds: 1st, That Sec. 5851, supra, eliminated the defense of suicide, sane (intentional) or insane (accidental), not contemplated by the insured at the time of the application for the policy, stating: "This, however, is not a case of accident, but of design — a case of suicide by poison," and: "Whether he took that poison accidentally or of purpose is not material here"; and, 2nd, that the pleaded defense of explicit policy provisions limiting liability in the event of death by poison was not available to insurer because if such defense did not set up suicide as a defense, then insurer interposed no defense and insurer's argument that said defense was one of death by poison, without setting up the suicide, was narrow and unsound; stating: ". . . when death occurs from suicide, whether that suicide is accomplished by poison or by shooting, the beneficiary shall recover for the full amount insured to be paid by reason of death occurring. The statute eliminates suicide as a defense." 153 Mo. App. l.c.s 72, 89, 90, 132 S.W. l.c.s 5, 11. (Brunswick v. Standard Acc. Ins. Co. (1916), 195 Mo. App. 651, 654, 187 S.W. 802, 803[2], followed the Applegate and other cases, stating: "If these judgments are sound, then suicide is to be regarded as an accident . . ." Court en banc, however, upon certification (1919), 278 Mo. 154, 165, 166, 169, 213 S.W. 45, 47[4, 5], 49, 7 A.L.R. 1213, held suicide while sane (intentional suicide) not an accident. Von Crome v. Travelers Ins. Co., 11 F.2d 350, 353. Consult Annotation, 41 A.L.R. 1523.)
The Scales case, like the Applegate case, was an action on an accident policy providing that in the event of death by poison the liability was limited to one-fifth of the face of the policy, the insured intentionally having taken poison. The holding of the St. Louis Court of Appeals in the Applegate case to the effect the insurer could not interpose the policy limitation in the event of death by poison as a defense as its effect was to grant insurer the advantage of the defense of suicide was explicitly disapproved by the Springfield Court of Appeals. 186 S.W. l.c. 950[7]. Upon certification, court en banc (a majority concurring in result), (1919), 212 S.W. 8, 9[2], sustained the result reached by the Springfield Court of Appeals upon the ground that "intentional self-destruction by a sane man is not an accident" and upon the "poison" feature of the case only remarked in closing: "As the plaintiff, under the facts as shown, cannot recover more than $140, it becomes unnecessary for us to pass on the question so thoroughly and ably discussed by the court of appeals."
The Applegate case, with respect to the point under review, relies upon certain observations in Whitfield v. Aetna L. Ins. Co., 205 U.S. 489, 27 S.Ct. 578, 51 L.Ed. 895, reversing 144 F. 356, 75 C.C.A. 358, 125 F. 269. We think the holding, as distinguished from [283] observations arguendo, in the Whitfield case is not upon the instant issue. That action was upon an accident policy. Insurer's defense that insured died from "a pistol shot intentionally fired by himself for the purpose thereby of taking his own life; that the cause of the death of said Whitfield was suicide" differed from the instant defense in that death by "a pistol shot" was not pleaded as an exception to the coverage but the defense interposed was restricted to the policy's exception, as pleaded, of "death . . . caused by . . . suicide, sane or insane . . ." (205 U.S. l.c. 491.) The Court held, so far as material to the instant issue and as stated in the concluding paragraph (l.c. 501): ". . . we adjudge that . . . where liability upon a life policy is denied simply because of the suicide of the insured, the beneficiary of the policy can recover the whole of the principal sum . . ."; the court reasoning (l.c. 496) from Sec. 5851, supra, that: ". . . the legislative intent was to cut up by the roots any defense, as to the whole and every part of the sum insured, which was grounded upon the fact of suicide. . . . Any contract inconsistent with the statute must be held void." [Italics ours.] See Brunswick v. Standard Acc. Ins. Co. (Banc), 278 Mo. 154, 168-170, 213 S.W. 45, 48, 49, 7 A.L.R. 1213; Scales v. National L. Acc. Ins. Co. (Banc), 212 S.W. 8, 10 (Mo. App.), 186 S.W. 948, 951; Langan v. United States L. Ins. Co., 344 Mo. 989, 996, 130 S.W.2d 479, 482.
Observations in our opinions refute the beneficiary's argument that "if the policy undertook to exempt from coverage or from liability `poisoning by an insane person' it is contrary to Sec. 5851." Vide: "The statute does not put into the policy a single obligation other than those mentioned in the policy. It merely takes out of the policy the defense of suicide as to the obligations mentioned in that policy." Scales v. National L. Acc. Ins. Co. (Banc), 212 S.W. 8, 9. "In short, as forecast above, the section does not write into an accident policy a cause of action where none existed upon the facts." Brunswick v. Standard Acc. Ins. Co. (Banc), 278 Mo. 154, 169, 213 S.W. 45, 49, 7 A.L.R. 1213. The concession in the Applegate case (153 Mo. App. l.c. 90, 132 S.W. l.c. 11) seems to be in accord, although the result differed; viz.: "The argument is also advanced that suicide does not give a cause of action. That is true. . . . The statute eliminates suicide as a defense." The beneficiary advances no argument convincing us that the result, or the reasoning of Farrington, J., in Scales v. National L. Acc. Ins. Co., 186 S.W. 948, is erroneous. It is in harmony with observations of court en banc in the Scales and Brunswick cases, supra. Briefly: If Sec. 5851 merely eliminates the defense of suicide and writes into an accident insurance policy no cause of action not therein created, it follows that no liability is created by said section in the event of suicide by poison, sane or insane, under policy provisions expressly excepting liability in the event of death by poison. Otherwise, the statute not only adds an obligation to the policy but adds an obligation explicitly excluded therefrom. In accord: Dixon v. Travelers P. Ass'n, 234 Mo. App. 127, 113 S.W.2d 1086; McReynolds v. New York L. Ins. Co., 122 F.2d 895, certiorari denied, 315 U.S. 700, 86 L.Ed. 560, 62 S.Ct. 483; New York L. Ins. Co. v. West, 102 Colo. 591, 82 P.2d 754, 756[2]. Consult Annotation, 131 A.L.R. 1061. The Applegate case, supra, is overruled to the extent indicated.
The judgment is affirmed. Westhues and Barrett, CC., concur.
The foregoing opinion by BOHLING, C., is adopted as the opinion of the court. All the judges concur.