Opinion
No. 42909.
June 9, 1952. Motion for Rehearing or to Transfer to Court En Banc Denied July 14, 1952.
APPEAL FROM THE CIRCUIT COURT, OSAGE COUNTY, RANSOM A. BREUER, J.
James T. Blair Jr., Jefferson City, Thomas as P. Rose, Jefferson City, for appellant.
Lauf Bond, H. P. Lauf, John O. Bond, Jefferson City, for respondent.
Plaintiff Lucetta G. Hendrix filed this rule as the beneficiary of a life insurance policy issued by the defendant Metropolitan Life Insurance Company upon the life of plaintiff's husband, Dr. H. Keith Hendrix, who died on July 8, 1950. The policy was written for $10,000 and contained a double indemnity provision. The defendant paid plaintiff $10,000 but denied liability under the double indemnity clause. Plaintiff obtained a judgment and defendant appealed.
It was admitted that Dr. Hendrix came to his death as a result of a gunshot wound. The case was submitted to a jury by instructions to find for plaintiff on either of two theories: first, that the wound which caused the insured's death was self-inflicted while the insured was insane; and second, that the infliction of the gunshot wound was accidental. The court instructed the jury on defendant's behalf that if the insured came to his death as a result of a self-inflicted gunshot wound while insured was sane, then defendant was not liable.
Defendant on this appeal briefed two points: First, the evidence did not justify a finding that the insured's death was caused by accidental means while sane; and second, the evidence was insufficient to sustain a finding that the insured was insane. To answer these questions the evidence must be carefully examined.
The evidence disclosed the following: The insured at the time of his death was nearly 42 years old. He was a Doctor of Osteopathy and enjoyed a good practice. He married in 1936, the same year that he graduated from school. The insured had enjoyed good health, was physically strong and was fond of engaging in outdoor exercises. His home life was very congenial. He was proud of his three children and spent most of his free time with his family. The family lived in a good home which they owned and the record justifies the assertion that the doctor had no financial worries. He was an active member of the Baptist Church. Insured had carried a policy of $10,000 with the prudential Life Insurance Company but in the early part of 1950 he spoke to an agent of the defendant company about the advisability of surrendering the policy he had and purchasing term insurance. Insured did surrender the Prudential policy and was paid its cash value. At the same time he purchased the policy here in question which was dated June 1, 1950. On June 21, 1950, Insured became ill and never again went to his office. He complained of having a sore throat and pains in the back of his head and shoulders. No doctor was called but the insured had a registered nurse administer penicillin and Vitamin B shots. On Monday, July 3, the doctor's condition seemed to have improved. He sat out in the yard where he took a sun bath. On Tuesday he spoke of taking some appointments at the office for the following Saturday. On Thursday his condition was much worse and he had severe pain. Previous to this, on June 30, he had been to Dr. Joseph Summers, Jr., a radiologist, who made X-ray pictures of his neck and the upper part of the spine between the shoulder blades. Dr. Summers testified that while Dr. Hendrix complained of "severe pain in the back of the neck and the upper part of the thoracic spine," these pictures showed no evidence of disease in that area. The evidence disclosed that beginning Thursday and continuing through Friday and Saturday, Dr. Hendrix was in continuous pain. He vomited frequently although he took no food or liquids except some water the last two days. From Thursday on, the doctor had very little to say even to his wife; he developed a strained look and seemed to be in a dazed condition and "was terribly nervous and his face sort of contorted." On one occasion his wife heard a noise in the bathroom and on investigating, she found her husband on the bathroom floor in a semiconscious condition and his pain was "so terribly great." On Saturday morning "the pain was so terribly great that he asked me (Mrs. Hendrix) if I would go up to the office" to get some white tablets. It was then about eleven o'clock. The testified that she went to the office but was unable to find the tablets; that she discussed the situation with her husband's father and they decided to call Dr. Lake, a Doctor of Osteopathy; that she went home and when she informed her husband that she had called Dr. Lake, her husband said, "Mother, will you have him hurry right over?" Mrs. Hendrix stated that she gave the children a light lunch and they went to bed in their room to take their midday naps; that she offered her husband some tablets he had been taking "because he was so excited from all the vomiting and everything that had been going on, that he was worn out, and he was really and truly in agony."
As to what occurred after Mrs. Hendrix put the children to bed, we quote the following from her testimony: "So, after I had bathed them, as customary, they had gone to their room. And I told them that they could rest and sleep, but not to make any noise, and to read their books. Of course, I had just had a check on Doctor, and I had a roast to put on, and I didn't ask him how he felt, I didn't ask him, I went on down the steps. I closed the door quietly, I was preparing a roast in the kitchen, when I heard this sort of — it sounded to me like it was a `B-o-o-k', or a `C-r-a-c-k', or something. And, naturally, since two or three days before that, that I found him upstairs, I was a little bit alarmed, and I ran upstairs, but the door was closed. And so I opened the door, he was lying on his back, with his mouth open, and all I could see — I knew it wasn't water spilling, because it didn't run like water — I didn't see it — I didn't see the blood — I slammed the door, and I woke the children, * * *."
Very soon after Mrs. Hendrix came from her husband's room, Dr. Lake arrived. It was then about one forty-five o'clock. Dr. Lake was told to hurry because Dr. Hendrix was much worse. Dr. Lake's testimony was in part as follows:
"A. Well, I went in the room to check him, and the shades were drawn and was all comparatively dark. He had a pale look, and I immediately opened my bag to get my stethoscope to check his heart, and his arm was in the way, up like this (indicating), and I dropped it down to his side, and placed my stethoscope over the heart area, and I could hear no heart beat. While I was doing so, the pant leg of my left leg became wet, and I wondered what had happened. And I turned the light on above the bed, and I noticed the blood on my knee and around Dr. Hendrix, and also noticed the gun.
"Q. And in what position was the gun that you saw? A. The gun was laying with the barrel pointed up towards his neck — he was laying down — up towards his face — the butt part of it up in the air, and his hand right above it."
A deputy sheriff testified that he took the gun, and when cleaning it, he found blood in the barrel. The gun contained five loaded shells and one empty shell.
This gun had been kept in the bedroom where Dr. Hendrix was found. Mrs. Hendrix testified that when Dr. Hendrix was out of the city she had loaded the gun for protection but thought she had always unloaded it after the doctor returned.
The defendant called but one witness, a druggist, who testified he talked to Dr. Hendrix over the telephone on Wednesday before the doctor's death; that he did not notice anything unusual in what the doctor said or in his manner of speech. This evidence was of little value. All witnesses agreed that on Wednesday the doctor was feeling better than he had been. The evidence showed it was from Thursday through Saturday that the insured was suffering so much pain and grew gradually worse.
The first question: Was the trial court justified in submitting the case to a jury on the theory that the insured came to his death by accidental means while sane? To this question we must answer in the negative. All of the circumstances shown by the evidence point to but one conclusion, that the gunshot wound was not accidental unless coupled with insanity on the part of the insured. The doctor, when found by Dr. Lake, was lying on his back, his head on a pillow, his hand over a gun which was pointed toward his head, a bullet wound in his temple; blood had run into the gun barrel indicating the gun had been held against the head and when fired death was instantaneous. Upon what reasonable theory could it even be speculated that this sick man — in terrible pain for three days, taking no food at least for two days, vomiting frequently, the pain so severe at times that he laid his head and neck across the foot of the bed in an attempt to block the pain, and only a few minutes before had asked that a doctor be told to hurry over — would in any manner play with a revolver or even think of a revolver except perhaps as an avenue of escape from the terrible suffering he had undergone for several days?
It is true as ruled in many cases that the presumption against suicide is so strong that unless the evidence negatives every reasonable inference of death by accident, a finding of death by accident will be justified. Edwards v. Business Men's Assurance Co., 350 Mo. 666, 168 S.W.2d 82; Brunswick v. Standard Accident Ins. Co., 278 Mo. 154, 213 S.W. 45, 7 A.L.R. 1213; 45 C.J.S., Insurance, § 773, page 803, and many cases there cited in the notes.
In the Brunswick case, supra, the court stressed the fact that the evidence disclosed no motive for suicide. In the present case we do have the illness and the fact that the deceased had been suffering extreme pain for several days. The cases cited by plaintiff, including the Edwards and Brunswick cases, supra, recognize the well-established rule that where the evidence leaves no room for a reasonable controversy about an ultimate fact, in this case the question of whether the fatal wound was self-inflicted, there can be no issue to be submitted to a jury.
Plaintiff in her brief says, "The evidence in this case is wholly circumstantial and suicide cannot be declared as a matter of law unless such circumstances exclude every reasonable hypothesis except suicide." That is a correct declaration of the law. However, under the evidence in this case which was all introduced by plaintiff, we are unable to discover any reasonable hypothesis justifying a finding of accidental death. In the Brunswick case, supra, 213 S.W. loc. cit. 50(9), this court said: "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. Kansas City, St. J. C. B. Railroad Co., 196 Mo. loc. cit. 550, 571, 94 S.W. 256."
We are compelled to rule that the trial court erred in submitting to a jury the question of accidental death while the insured was sane.
To the second question submitted, was the evidence ample to justify a finding that the insured came to his death by suicide while he was of unsound mind, we must answer in the affirmative. We need not discuss this question at length. The facts proven as above-outlined should be sufficient. We call attention to only a few facts as revealed by the evidence. Dr. Hendrix was a healthy and strong man, was jovial of disposition, and enjoyed his family and friends. Sickness came upon him suddenly. The record fails to disclose what the malady was but its effect on the insured was terrific. At times he seemed to be in a dazed and groggy condition; he could not retain any food and the last two days he could not retain medicine or water. He wanted relief from a terrible pain about the back of his head, neck, and shoulders. He would talk very little when asked questions; his response was often only a nod or "shake" of his head. He looked "starey-eyed" and his face was contorted. Once he was found on the floor of the bathroom in a semi-conscious condition. On the last day of his life, when he was informed that a doctor has been called, his only response was to tell him to hurry. From this it could be inferred that his pain was becoming unbearable; and a short time thereafter and before the doctor arrived, the insured was relieved of his pain through death. Such facts justify a finding that the insured was not of sound mind at the time of his death. Edwards v. Business Men's Assurance Co., supra; Lemmon v. Continental Casualty Co., 350 Mo. 1107, 169 S.W.2d 920; Rodgers v. Travelers' Ins. Co., 311 Mo. 249, 278 S.W. 368, loc. cit. 370(3).
The judgment is reversed and the cause remanded.
The foregoing opinion by WESTHUES, C., is adopted as the opinion of the court.
All concur.
BOHLING and BARRETT, CC., concur.