Bankers' Health & Accident Ass'n v. Wilkes

• Decision Date: 05 February 1919
• Docket Number: (No. 1464.)
• Citation: 209 S.W. 230
• Parties: BANKERS' HEALTH & ACCIDENT ASS'N v. WILKES.
• Court: Texas Court of Appeals

209 S.W. 230

BANKERS' HEALTH & ACCIDENT ASS'N v. WILKES.

(No. 1464.)

Court of Civil Appeals of Texas. Amarillo.

February 5, 1919.

Rehearing Denied March 5, 1919.

Appeal from District Court, Garza County; W. R. Spencer, Judge.

Suit by Mrs. Lillie Wilkes against the Bankers' Health & Accident Association. Verdict and judgment for plaintiff, and defendant appeals. Judgment affirmed.

Samuel Schwartz, of Houston, and W. F. Kelly, of Post, for appellant.

Shurtleff & Cummings, of Waco, and Chas. L. Black, of Austin, for appellee.

HALL, J.

This suit was filed against appellant upon a policy of insurance issued to the husband of appellee, William A. Wilkes. Appellee prayed for judgment for $5.000, the face of the policy, and for the statutory penalties provided by Rev. St. 1911, art. 4746. The trial was before a jury, resulting in a verdict in favor of appellee for the full amount claimed in the petition.

Under the first assignment appellant says there is error in the court's action in overruling its motion for a continuance. The suit was filed April 24, 1918. Appellant was cited April 30th. The motion was filed on June 3d. The statement of facts shows that appellee's husband died December 19, 1917 as a result of a gunshot wound which appellee claims was accidental, entitling her to recover under the policy. Appellant's contention is that appellee is not entitled to recover because her husband suicided, or that his death was caused by the voluntary exposure of himself to danger. Immediately after the pistol which killed Wilkes was fired, appellee fled to the home of a neighbor, and it appears from the statement of facts under intense excitement and while frantic with grief made statements to a number of witnesses concerning the occurrence. The application for continuance is filed on account of the absence of four of the witnesses, all females, who heard her make the statements. About 10 days after the death of the husband, on December 19, 1917, a representative of the company went to the town of Post, where appellee resided, and made an investigation of the circumstances surrounding the death, and after the investigation declined to pay appellee anything under the policy. These witnesses were never subpœnaed, nor has any effort ever been made by appellant to take their depositions. It was not shown that Miss White, who it is alleged was sick, was too ill during the entire 30 days to answer interrogatories. Appellant has shown no diligence whatever to procure the testimony of the witnesses, and its application fails to state that it has used due diligence. Not being a statutory application under all the circumstances, it was addressed to the sound discretion of the trial court, who qualified the bill by stating that the testimony, if secured, would be cumulative. We think the court did not err in overruling the application.

Appellant asked the court to direct a verdict in its favor, and the court's refusal is made the basis of the third and several subsequent assignments. It is contended under this assignment that there is nothing in the record to sustain the theory of an accidental shooting, and that the overwhelming weight of the testimony indicates clearly that Wilkes' death was the result of voluntary exposure to danger or suicide. In the first place, where it is shown that the deceased met his death as the result of external and violent means, there arises a presumption against suicide. The force of this presumption is to place upon the appellant the burden of establishing in this case that Wilkes' death was caused by his own hand, or by voluntarily exposing himself to danger. It was shown by the testimony of appellee that she had arranged with her husband to do some Christmas shopping on the afternoon of December 19th, and he told her to ring him up at his place of business after she reached the business district and he would join her there and assist her in her shopping, that she went to town about 6:45 p. m., called him from Dowdy's store to meet her at Warren's Drug Store, and that he came in to the drug store in a few moments. She left their children at home in charge of two girls who lived in the neighborhood, and who had agreed to care for them during her absence. She says they were shopping for more than an hour; made several purchases in the way of Christmas presents for the children, and it appears that he took an active interest in the matter. She testified:

"As we went home that afternoon William [deceased] and I talked quite a little bit about what we would do Christmas. We were planning to have a little houseparty. We planned what we would do when the girls and boys came and discussed what we would do Christmas Eve night and Christmas Day. William made the remark to me that evening going home that he thought our children were old enough to appreciate Christmas at home. We had been in the habit of going to mother's for Christmas Eve, and had never spent Christmas Eve at home. So we discussed it, and he thought it was best to start Christmas Eve at home, and have Santa Claus at home, and we could go to my mother's the next day for dinner, and I agreed with him, and said that I thought it would be nice for he and I and the babies to be at home together. There was no discussion between he and I other than an agreeable conversation that afternoon. My mother lived here in Post. The little girls were there [home] when we got there. When we got there we had quite a few bundles, and we went in and laid them on the dining room table. * * * William had carried a gun practically ever since I had known him, and it had been his habit and custom the few months preceding his death, while we were using the dining room as our living room, to always put his pistol on the dining room table when he came in the room. That evening when we came in we went into the dining room, and the little girls that we left there were in the dining room. William talked to the little girls, and joked with them, talked with them, and teased them. * * * We had a victrola there in the living room, large double doors between the living room and dining room, and it set right inside, around the door from the dining room. In the room I refer to as the living room, we were not keeping up a stove in there at that time; we were using the dining room for the living room at that time. The victrola was in the room where there was no fire. When William came from the bathroom he went into the dining room, and the little girls were sitting by the fire, and he said something to them, and went and wound the victrola, and turned it on. The little girls left directly after he began playing the victrola. * * * After the girls left of course William was standing in the dining room by the side of the dining room table. I was in the bedroom, fixing the light. I was in the act of taking off my hat, and when I came back through I went to attend to the victrola and William was standing like this on this side of the dining room table, standing there by the table. I don't know what he was doing. I don't think it was an unusual thing for him to do. I didn't notice what he was doing, but while I was there he told me he was going to Judge Dursts, and didn't know how long he would be gone, but would not be gone very long. Something had previously been said by us about him going to Judge Dursts to get some books. We had been swapping books backward and forwards, and when we were up town Judge Dursts made the remark that he had some good books; he remarked that it seemed like he had been doing all of the borrowing of books; we had not borrowed as many as he, and he said to William to come over and get some books, and we made mention of it going home. When I got there at the victrola, he was still standing by the dining table. When he said something about going to Judge Dursts, and when he said that — I don't recall that I said anything in answer to that — I said, `All right;' that is what I usually said. I don't know what the next thing was that attracted my attention, but something attracted my attention, and I wondered what it was that did attract my attention. Q. Didn't it sound like a click or something? A. I don't know what it was arrested my attention, but when I turned I just saw the gun flash. I saw just a fire. I never saw the gun at all. I don't remember seeing it in William's hand. I don't remember seeing it in his hand that night, and I know I didn't see it when I turned. All I could see was just a fire. I don't know whether I saw him fall or not. I went to Mrs. Williams the minute I saw the flash."

John R. Williams, who had been associated with the deceased in business, saw him late in the afternoon, and testified:

"He didn't appear to be drinking at all. I didn't think he was drinking at all. He was away from the store about an hour that evening; went up town and stayed awhile, I suppose, about an hour, and came back, but I didn't smell any whisky on his breath, and he didn't act like a man who had had a drink."

Vida Hunter, one of the little girls who kept the children while appellee was shopping, testified:

"I recall the evening when Mr. Wilkes was killed; I had been over to Mrs. Wilkes' home that evening to keep her children. Stella Terrell, another little girl, was there with me. We were there when Mr. Wilkes and his wife returned, and there was nothing unusual in the appearance or conduct of either. Mr. Wilkes came in there and spoke to us, and then he turned around and went back in there and started the victrola. He had something to say to me. He was just as jolly as he ever was, cutting up like he always did. I left soon after he came in. Before I left I didn't see him put a pistol up to his breast and stagger around over the room. I didn't see him with a pistol at all."

The appellee had testified that her husband was drinking on the afternoon in question, and on cross-examination testified:

"I didn't have any trouble with Mr....