Accident Ins. Co. of North America v. Bennett

• Decision Date: 06 June 1891
• Citation: 16 S.W. 723,90 Tenn. 256
• Parties: ACCIDENT INS. CO. OF NORTH AMERICA v. BENNETT.
• Court: Tennessee Supreme Court

16 S.W. 723

90 Tenn. 256

ACCIDENT INS. CO. OF NORTH AMERICA v. BENNETT.

Supreme Court of Tennessee.

June 6, 1891

Appeal from circuit court, Shelby county; L. H. ESTES, Judge.

L. & E Lehman, for appellant.

Taylor & Carroll, for appellee.

SNODGRASS J.

Action on accident insurance policy for $5,000 issued by plaintiff in error on life of A. Bennett. Trial before a jury. Verdict and judgment in favor of plaintiff for amount of policy and interest. Appeal and assignment of errors by defendant. Bennett was found dead in a house on Causey street, Memphis Tenn., about 10 o'clock A. M., on 31st March, 1886. He had been dead, apparently, about a half hour, the body being still warm. The house contained three rooms,--the front a bedroom, the middle a diningroom, and a back room applied to no special purpose, so far as the evidence discloses, but having a place of exit--a door--opening into a back yard, and by an alley. Entering the dining-room from the front, the door was on the left side of the room, and it was in line with and directly opposite the door between that and the back room and the back door mentioned. Bennett was found lying between the two doors in the back room, dead, with a pistol shot through his heart. Neither his flesh nor clothing was powder burned. His hat and umbrella were lying near him. In the dining-room opposite, mortally wounded and speechless, it would seem from absence of any effort to prove that she ever spoke after being found, was a woman known as Ida Bennett, with whom Bennett is shown to have had illicit relations, and who had been occupying the house. Her flesh and clothing were powder burned, and she had a pistol-shot wound in her right side, of which she subsequently died. Near her, towards the front of the house, (she lying rather across the space between the two doors of the dining-room,) was found a sixshooting pistol but whether loaded or unloaded does not appear; nor does it appear whether the wounds made in the two bodies were made by this, or even by a pistol carrying the same sized ball. In relation to Bennett's connection with the woman, and the house in which both were found dead and wounded, it was shown that he had some time before met her at a house of ill fame; that she subsequently became his mistress, and lived with him as such. Whether this was open and notorious does not appear. That, the day before the killing, Bennett, who had been absent from the city for some time, returned to it, and asked a friend how this woman had been conducting herself while he was away, and whether she had been true to him; expressing himself as tired of her, and intending to break up his relations with her, and saying that when she went home next summer to see her people he intended that she should remain there, and that would be the end of their relations; said he wanted to quit her, because his relations with her were bringing him into disrepute, and that when he met his young lady acquaintances he could not look them in the face. The witness who gave this evidence testified that Bennett was a peaceable, quiet, timid man, and had a good reputation for peace; that Bennett did not intimate that he had used any violence towards the woman, and the witness stated no fact or declaration from which an intimation to do so could be inferred. This, so far as appears, was the last time Bennett was seen by any living witness until he was discovered dead, and it is upon facts and circumstances thus stated that the verdict and judgment are based. The objections to the judgment will be considered as near as possible in the order of the assignment of errors.

The first of this assignment is that the court erroneously charged: "The presumption of the law is that Bennett did not commit suicide, and was not murdered." The court did so charge, adding, however, that "either of these presumptions may be overcome by facts and circumstances which establish the contrary:" and elsewhere saying to the jury: "In determining what facts are proven in the case, you should carefully consider all the evidence given, with all the circumstances of the subject-matter of the inquiry, as detailed by the witnesses." The charge was a correct statement of the law. Mallory v. Insurance Co., 47 N.Y. 52; Insurance Co. v. McConkey, 127 U.S. 661, 8 S.Ct. 1360. It is argued that this application of the law is erroneous, because deceased must have either killed himself, or been killed by the woman, in view of the circumstances detailed. But this does not follow. Both may have been killed by another or others. There is great probability that one may have shot the other, and then himself or herself. The latter is most probable, but there is no presumption of the fact, and the presumptions were as stated by the circuit judge.

The second error assigned is that the court charged: "The jury may find any fact proven which may rightfully and reasonably be inferred from the evidence." The exception is based upon a condition of the policy that "the insurance shall not be held to extend to any case of death, the nature, cause, or manner of which is unknown or incapable of direct and positive proof." But the charge was not in contravention of law, nor of the terms of the contract. The requirement of direct and positive proof of the nature, cause, or manner of death did not make it necessary to establish the fact and attendant circumstances of death by persons actually present when the insured received the injury that caused his death. The two principal facts to be established were external violence and accidental means producing death. The first was established when it appeared that death ensued from a pistol-shot wound through the heart of deceased. The evidence on that point was direct and positive, as much so as if it had come from one who saw the pistol fired; and the proof in this point was none the less direct and positive because supplemented or strengthened by evidence of a circumstantial character, (Insurance Co. v. McConkey, 127 U.S. 661, 8 S.Ct. 1360;) or, we add, of an inferential or presumptive character.

The question as to "accidental means" of death necessary to be shown will be considered under the fifth assignment of error, in which connection it most properly falls, and which arises upon refusal of the circuit judge to charge, as requested, that, "if the jury finds from the evidence that Bennett died from a pistol-shot wound received at the hands of a person who intended to kill him, the plaintiff cannot recover;" based upon a provision in the policy that it only covers injuries effected by external violent, and accidental means, and argument that, if the killing was intentional on the part of the person shooting him, it was not accidental, within the meaning of the policy. It may be remarked, in the first place, that there being no evidence of an intentional killing, and no presumption of it, the court was not required to give this charge; but passing that, we are of opinion that where, as in this case, there was no provision in terms against a claim under the policy...