Aetna Life Ins. Co. v. Milward

Citation82 S.W. 364,118 Ky. 716
Decision Date30 September 1904
CourtCourt of Appeals of Kentucky

Appeal from Circuit Court, Fayette County.

"To be officially reported."

Action by Lessie M. Milward against the Ætna Life Insurance Company. Judgment for plaintiff. Defendant appeals. Affirmed.

Breckinridge & Shelby, for appellant.

C.J Bronston and John R. Allen, for appellee.


This is an appeal from a judgment for $5,000 in favor of the appellee (plaintiff below), as the designated beneficiary in a policy insuring her husband, Charles S. Milward, against accidental death. The defense, as made by the answer, consists of a denial that the death was the result of an accident, and a claim that it was due to suicide. The principal points of complaint presented on this appeal are that the verdict was unauthorized by the evidence, that the petition was insufficient, and that competent evidence on appellant's behalf was rejected by the trial court.

The insured was found dead from the effects of a pistol shot wound in the head. His body, partially disrobed as he had slept, was discovered lying in a small porch or entry, which was partially inclosed, at the rear of his residence. By his side were two pistols, both loaded, but in one a discharged cartridge. The shot entered his head on the left side, behind the ear, and passed through in nearly a straight line. The two pistols were lying rather to his right side. He was right handed. His domestic relations were apparently pleasant being happily married. He had also two young children. His health was good. His mercantile business was prospering satisfactorily. He was about 34 years old, and a man of good habits and character. The shot which killed him was fired about dawn November 21, 1900. It was heard by but one person who testifies in the record. The tragedy was unseen by any witness in the case. Appellee, widow of deceased, and her two infants slept in an upstairs room, but were not aroused by the shot. There were no other evidences of violence, nor of the presence of another person at the scene of the killing. The back yard, where it occurred, had walks leading to it which were paved, and would not for that reason have shown tracks. One of the pistols probably belonged to deceased, or had recently been in his possession. It was a nickel-plated Iver Johnson revolver. The other, a blued steel barrel pistol, was not identified as to its ownership. It was from the latter the fatal shot was fired. There was some evidence that the insured was a man of intense application to business, was of a nervous temperament; that he had a year or so previous to his death consulted a physician, who advised him to take a rest on account of nervous exhaustion or depression, and that he took a vacation of two or three weeks in the Northwest. After his return the physician found him restored to health, and quit treating him. A few days before his death deceased complained of pain in the back of his head.

Appellant argues that the verdict is flagrantly against the evidence because, it is contended, the evidence, of which the foregoing is a fair epitome, shows clearly that the death was suicide; or, in any other view of it, it fails to show that the death was caused by accidental means, and therefore there was a failure of proof on behalf of the plaintiff. As indicated, the evidence is wholly circumstantial. It may none the less point as unerringly to a correct conclusion as if detailed by eyewitnesses. It will not do to say that in such case the jury is required to "guess" the cause. It is unlike when the circumstances do not show the cause of the occurrence, as in Louisville Gas Co. v. Kaufman, 48 S.W. 434, 20 Ky. Law Rep. 1069, and Hurt v. Louisville & N. R. Co., 76 S.W. 502, 25 Ky. Law Rep. 759. The nature of the wound shows conclusively that the cause of the death was both violent and external. The date of the occurrence is within the duration of the policy of insurance. The only remaining question was, whether it was accidental in the meaning of the contract. Aside from legal presumptions, about which the jury were not instructed in this case, though they may properly have been, we are unable to say from the evidence that the verdict is not true. It is reasonably clear, at least most probable, that if decedent had a pistol at all, it was the one, and so far as the record shows, the only one, to which he had access--the nickel-plated revolver--from which the fatal shot was not fired. That it was not fired by him is indicated by the place of the wound, its entry being on the opposite side of the head from that which would have been the most easiest and most natural if suicide had been done. Absence of scorching of the hair and of powder burn in sufficient quantity also negative the theory that a right handed man had placed the muzzle of the pistol where it must have been done if done by decedent to have inflicted that shot. That the pistols were found on the right side of the body seems to refute the theory that decedent, contrary to his habit and instinct of using his right hand, used his left in this act. The instantaneous effect of such a wound is to produce paralysis of the volition. Death was immediate, in so far as the ability to dispose of anything in his hand was concerned. The surrounding circumstances are not in harmony with the view that the insured took his own life. They tend to show that the act was not the probable course of a sane person who was bent upon destroying his life. There was no hint in the evidence of any sympton of insanity. Circumstantial evidence tells the story of a past transaction by the similitude between the things shown to have been done and what, in the experience of mankind, has been found to be generally the cause or result of similar occurrences. From these the mind deduces the most probable cause of the occurrence in question. The result of this process of reasoning has been found to be so unvarying as to justify its adoption as a rule of evidence. The jury were authorized to apply to the facts detailed their knowledge of human nature, and to indulge, in aid of deduction predicated upon the established facts, those presumptions which common experience has established, and which therefore the law allows. The love of life is instinctive; self-preservation is its first, as it is its strongest, law. In the absence of mental derangement, of any known fact calculated to unseat the judgment and to overcome the love of life, the inquiring mind naturally and properly looks for other causes of the deed when death by violence occurs. When all the facts are inconsistent with the theory of suicide, except simply that of the dead body in the presence of its instrument, it would be unnatural and illogical to confine the inquiry to that incident, and declare the death suicide. The act of suicide is not only unnatural, but is highly immoral and criminal. The presumption of law is against it, so is the presumption of fact. The jury ought to have given place to that presumption in determining what, in the light of the evidence, was the cause of the death. By this process they were warranted, under the evidence in this case, in saying that the death was not suicide.

Nor does the law presume that murder or other crime was committed. There was not enough evidence probably to say that murder was done. Still, the inquiry had led the jury to logically say that the death was from a cause violent and external, and not purposely self-inflicted. Such a wound, not having been inflicted with suicidal intent, was necessarily done by the decedent unintentionally, or, as the evidence indicated to be more likely, was done by some one else. As the presumption is also against crime, in the absence of evidence of the fact, the jury was not authorized to say that the wound was purposely inflicted by another. The conclusion from this state of the record inevitably follows that decedent came to his death by an unintentional--that is, an accidental--shot fired either by himself, or by some other person unknown to the jury. Nor does it matter, so far as the liability of appellant is concerned, which it was. In either event it was an accidental death, within the meaning of the policy of insurance.

2. In an action upon an accident policy of insurance it is necessary for the plaintiff to allege and prove that the insured came to his death by violent, external, and accidental means within the time covered by the policy. It is as necessary to allege and prove the last as either of the other requisites. Though appellant complains that in this case the burden was not so imposed, we think it was. The petition so charged. The court so ruled in the admission of evidence. In the instructions it was also observed. The policy of insurance declared upon contracted against injury and death through external, violent, and accidental means. It contained many provisions for graduated indemnity, depending upon the nature and extent of the injury, and the calling and exposure of the insured; more to be paid in certain contingencies than in others. In a suit upon such policy, it is not necessary for the plaintiff to state that he was not suing to recover under certain clauses not relied on, or for certain injuries not received, nor to negative any of the provisions of the policy not made conditions precedent to his right to institute the suit. National Benefit Ass'n v. Bowman, 110 Ind. 355, 11 N.E. 316; Jones v. United States Mut. Acc. Ass'n, 92 Iowa 652, 61 N.W. 485; Railway Officials, etc., v. Drummond, 56 Neb. 235, 76 N.W. 562; Whitlatch v. Fidelity, etc., Co., 71 Hun, 146, 24 N.Y.S. 537; Employers, etc., Corp. v. Rochelle, 13 Tex.Civ.App. 232, 35 S.W. 869; Cooledge v. Continental Ins. Co., 67...

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