Aetna Life Ins. Co., Hartford, Conn. v. Nicol
| Decision Date | 03 June 1949 |
| Docket Number | 17767. |
| Parties | AETNA LIFE INS. CO., HARTFORD, CONN., v. NICOL. |
| Court | Indiana Appellate Court |
In action on double indemnity clause of life policy, evidence sustained jury's verdict for plaintiff on issue whether insured committed suicide or died directly and independently of all other causes from bodily injuries effected solely through external, violent, and accidental means within such clause.
Stuart, Devol, Branigin, Ball & Ricks Lafayette, Fraser & Isham, Fowler, for appellant.
Vaughan & Vaughan, Charles B. Kemmer, Lafayette, for appellee.
The appellee sued the appellant, Aetna Life Insurance Company, to recover as the named beneficiary on a double indemnity clause of a life insurance policy on the life of appellee's husband, Admiral Dewey Nicol. The face amount of the policy was $20,000 which the company paid to the appellee, but it denied liability on the $20,000 double indemnity clause.
The issues were formed by appellee's complaint and appellant's answer, and the cause was tried by a jury and a verdict was returned for the appellee in the sum of $23,800 upon which judgment was rendered accordingly.
The appellant filed a motion for a new trial, the overruling of which motion was the sole assignment of error in this court. The specifications in the motion for a new trial are that the verdict of the jury is not sustained by sufficient evidence and is contrary to law; and that the court erred in overruling defendant's written motion for a directed verdict filed at the close of all of the evidence, and that the court erred in refusing to give to the jury Instruction No. 1 requested by the defendant, which was an instruction to direct a verdict for the appellant.
The appellee contends that appellant has presented no question in this appeal by reason of appellant's alleged failure to comply with rule 2-17. While we do not approve the form of the brief in its entirety, we are of the opinion that a good faith effort has been made by appellant's counsel to prepare the brief in conformity with the rules and requirements of this court so that under the rules and with full consideration thereof, this court is able to understand the questions presented in this appeal and that the brief of appellant is, therefore, sufficient for a determination of this appeal on its merits.
The various specifications of error and propositions asserted by the appellant question the sufficiency of the evidence to support the verdict on the grounds that there is no evidence showing that the assured's death resulted from accidental means, and that such death was not the result of suicide or any attempt thereat while the assured was sane or insane.
The double indemnity provisions of the insurance policy in question were the usual type of such provisions found in most policies of life insurance. It provided that if death results directly and independently of all other causes from bodily injuries effected solely through external, violent and accidental means, and if such injuries are evidenced by a physical contusion or wound on the exterior of the body, the company will pay $20,000 in addition to the insurance payable under the policy for natural death. The provision does not apply to the death of the insured resulting from suicide or any attempt thereat while sane or insane.
The appellant admits that the record contains evidence supporting all conditions precedent to recovery, but denies that there is evidence sufficient to support the verdict that death was the result of accident and not the result of suicide.
In determining the questions presented in the assignment of errors we must consider all such evidence as is most favorable to appellee in determining whether there was sufficient evidence to support the verdict, and the evidence necessary to support a verdict may be based upon circumstantial evidence. Orey v. Mutual Life Ins Co., 1939, 215 Ind. 305, 19 N.E.2d 547; Sovereign Camp Woodmen v. Haller, 1900, 24 Ind.App. 108, 56 N.E 255; Prudential Ins. Co. v. Dolan, 1910, 46 Ind.App. 40, 91 N.E. 970.
In the present case there was no direct evidence concerning the immediate circumstances of the fatal shooting of the insured. Therefore, in determining the issue presented by this appeal, we must ascertain whether there was any circumstantial evidence which the jury had a right to consider to support the verdict based upon the accidental death of the insured.
The record discloses evidence from which the jury could have properly found that Dewey Nicol, the insured, was 46 years of age and resided in West Lafayette, Indiana. He was a plastering contractor, married, and the father of three living children, the youngest being nine years of age. On the morning of March 20, 1944, Nicol left his home with no luggage except his briefcase. He told his wife he was going to check on some pending jobs. He went to Marion, Indiana and returned by the next morning. He did not go home that night and he was seen in Lafayette Tuesday and Wednesday. Wednesday evening about 6:00 p. m. he arrived at the house of one Grover Miller. Miller was a bachelor farmer living on a 95-acre farm near Klondike, Indiana, about six miles from Nicol's house and near Nicol's golf club. Miller's farm was a fine place to hunt and Nicol had been there hunting during the hunting season. Nicol stayed at the Miller house Wednesday and the next two nights sleeping on a cot in Miller's bedroom. During this time he never left the house except to go with Miller to the town of Montmorenci for supplies Friday night. He spent his entire time sitting, talking to Miller, reading mystery stories, and looking at papers in his briefcase. The entrance to the Miller house used by Miller was on the south end and into the kitchen. The living room in which the heating stove was located was to the east of the kitchen, and the bedroom was north of the living room. In the bedroom Miller kept a loaded shotgun and a loaded pump gun type Winchester rifle. Sometime during Nicol's stay at Miller's house these guns were brought out and handled by Nicol, who was told they were loaded. Nicol was an expert marksman, thoroughly familiar with small arms and a careful hunter. Miller had a dog which enjoyed the privilege of the house even to the extent of Miller's bed and cot. Saturday, March 25th, by prearrangement, Miller went to Lafayette to do his shopping for the week. The day was raw and cold. Nicol and Miller arose early, Nicol shaved and then took Miller in his car to Miller's cousin's house about 1/4 mile down the road where he let Miller out to accompany his cousin to Lafayette. Nicol said 'so long' and drove out of the drive. Miller did not see which direction he turned. Miller returned from Lafayette that afternoon being let out at the highway in front of his house about 3:00 p. m. It had been snowing since noon. There were no tracks in the snow returning from the road to Miller's house. Miller noticed to his surprise that there was smoke coming from the chimney. Nicol's car was backed close to the barn. Miller went into the kitchen and then into the living room. On the floor lay Nicol on his back with his eyes open. Miller said to him 'You had better get up.' Nicol mumbled something incoherently. Miller then stepped over Nicol, went into the bedroom, changed his clothes, stepped over Nicol again and went out and did his chores without further conversation. The door between the living room and bedroom was closed and Miller's dog was on the bed. When Miller returned from his chores he again came into the living room where Nicol still lay. Miller said, 'You better get up or I'll call the sheriff.' Nicol said to call Bob Henderson. Henderson is an undertaker in Lafayette. Miller then asked Nicol what was the matter and Nicol said he was hurt. Miller called the undertaker and told him to bring an ambulance. He turned Nicol on his side at Nicol's request and saw a blood stain on his brown checked shirt about two inches in diameter about two inches immediately below the left nipple. Nicol was lying on his back in the middle of the room, his feet were pointed southeast and his head northwest. The rifle was on the floor south and east of Nicol's feet, three feet away, with the barrel pointed away from Nicol. One load had been fired. There was no overturned or misplaced furniture in the living room. The door to the bedroom where the rifle was kept was closed and the dog was in the bedroom. Nicol was taken to the hospital in Lafayette in shock and was examined by the resident physician who found no powder marks on Nicol's shirt. A .22 caliber slug had entered Nicol's body between the 5th and 6th rib slightly outside of or to the left of the left nipple line. It had taken a downward course and had lodged in the spinal canal below the point of entry. There was no powder burn around the wound. There were no bruises or scratches on Nicol's body. Nicol died six days later as a result of the rifle wound. There was evidence of experts relating to the manner in which the rifle could have been fired and relating to tests made by them for powder marks at given distances from the muzzle on white cloth. Lt. Robert Borkenstein of the Indiana State Police testified that the end of the muzzle of the rifle would have to be at least fourteen inches away from the body to produce no powder residue on the cloth used in the test, but that the cloth used in the test was not identical with the cloth of insured's shirt. He testified that Nical could not have voluntarily or deliberately shot himself with the refle using his own arms and fingers on the trigger without leaving powder marks on his shirt, undershirt, or body. There were no powder burns present and the...
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