Aetna Life Insurance Co. v. Taylor

• Decision Date: 19 March 1917
• Docket Number: 242
• Citation: 193 S.W. 540,128 Ark. 155
• Parties: AETNA LIFE INSURANCE COMPANY v. TAYLOR
• Court: Arkansas Supreme Court

193 S.W. 540

128 Ark. 155

AETNA LIFE INSURANCE COMPANY v. TAYLOR

No. 242

Supreme Court of Arkansas

March 19, 1917

Appeal from Jefferson Circuit Court; W. B. Sorrells, Judge affirmed.

Judgment affirmed.

M Danaher and Palmer Danaher, for appellant.

1. The case should not have been revived. Kirby's Digest §§ 6303 to 6306. It was improperly revived. No order was served on defendant.

2. It was error to give the second instruction for plaintiff. The burden of proving suicide was not on defendant. 55 N.E. 540 182 Ill. 496; 4 Cooley on Insurance, 3258.

3. The attorney's fee is excessive.

Gustin, Gillette & Brayton and Taylor, Jones & Taylor, for appellee.

1. The suit was properly revived. Kirby's Digest, §§ 6603 to 6307, 6314, 6317; 76 Ark. 122.

2. The burden was on appellant to prove suicide. 80 Ark. 190; 95 Id. 456; 113 Id. 502. There is no error in the giving or refusal of instructions. 78 Ark. 241; 84 Id. 81; 92 Id. 472; 93 Id. 509; 96 Id. 184.

3. The attorney's fee is not excessive.

M. Danaher and Palmer Danaher, for appellant, in reply.

Where a policy insures against bodily injuries effected solely through external, violent and accidental means (suicide, sane or insane, not included), the burden of proof rests upon plaintiff * * * to prove that the death occurred through accidental means, and the fact that defendant pleaded suicide does not alter the rule. 73 Mo.App. 38; 147 P. 1175; 1 Corpus Juris, 496; § 284; 4 Cooley's Briefs on Insurance, 2358; 240 Ill. 205; 175 Ill.App. 511; 215 Mass. 32; 149 N.Y. 45; 28 N.Y.S. 951; 209 Pa. 632; 169 Mo. 272; 82 N.W. 326.

STATEMENT BY THE COURT.

This is an action by an administrator to recover on a policy of accident insurance.

The plaintiff alleges that the Aetna Life Insurance Company insured Edgar P. Sears in the sum of $ 5,000 against death resulting directly and independently of all other causes, from bodily injuries effected solely through external, violent and accidental means. That the policy itself and the accumulations from renewals amounted to $ 8,000, and that Ella S. Sears, the wife of the insured, was the beneficiary.

That on the evening of November 25, 1914, during the life of the policy, Edgar P. Sears received a pistol wound in the head at the hands of an unknown person which resulted in his immediate death.

In its answer, defendant denied that the death of the insured was accidental within the meaning of the policy. It avers that by the terms of the policy it did not agree to insure Sears against death resulting from his own intentional act. The answer further alleges that Sears committed suicide by shooting himself, and that no person other than himself was responsible in any manner for his death. The material facts are as follows:

Edgar P. Sears had carried an accident policy with the defendant company for sixteen years prior to his death. The policy which was in force at the time of his death insured him against disability or death resulting, directly and independently of all other causes, from bodily injuries effected solely through external, violent and accidental means, suicide (sane or insane) not included. The policy was for $ 5,000 and contained a clause for an increase of the amount of the policy by consecutive renewals until the accumulations should amount to 50 per cent. of the principal sum.

The insured was found dead in the city of Pine Bluff on the morning of the 26th of November, 1914. His death was the result of a gunshot wound through his head, which, the physicians who examined his body testified, caused immediate death. The bullet went into his head about an inch in front and above the right eye and came out about one inch and a half above and behind the left ear. There were no powder marks or burns of any nature on his body; his flesh was not charred, nor was his hair singed. Sears was a good sized man, weighing about two hundred pounds. His body was found near a cotton platform and a folding pocketbook with some of his papers in it was lying on a bale of cotton on the platform. He was lying on his back with one leg straight out and the other drawn up. His left arm was lying down by his side and his right arm was lying over his breast with his hand on a .38 caliber pistol. The pistol had been fired twice. The ground was dusty and there was no evidence of a struggle or even of any other tracks around there.

It was also shown by the defendant that the insured had formerly been a man of means and had always made a good deal of money until about a year before his death, when misfortune overtook him. The defendant's evidence also tended to show that the insured was making very little money just prior to his death and had been unable to even pay his board; that he was drinking heavily and was very much depressed. Other circumstances tending to show death by his own hand were adduced in evidence.

The testimony on the part of the plaintiff tended to show that the deceased had not been drinking heavily prior to his death; that he was in good spirits and had sent his wife a small amount of money, writing a cheerful letter.

The jury returned a verdict for the plaintiff, and the defendant has appealed.

OPINION

HART, J., (after stating the facts).

This action was commenced by Ella S. Sears, the beneficiary named in the policy. During the pendency of the action and before the case was tried she died and the suit was revived in the name of Dan Taylor, as special administrator of her estate. This was done over the objection of the defendant. The motion to revive was accompanied by the affidavit of three persons showing that Ella S. Sears had died at Salt Lake City, Utah, and that no administration upon her estate had been had. There was no error in the action of the court in this regard.

In Anglin v. Cravens, 76 Ark. 122, 88 S.W. 833, the court said: "When the plaintiff dies during the pendency of the action, any person interested in the further prosecution thereof may have a revivor in the name of the administrator or executor, if there be such, and the right of action be one that survives in favor of the personal representative; and if there be no general administrator or executor, the revivor shall be in the name of a special administrator appointed by the court in which the action is pending. The order to revive may be made forthwith--as soon as the court in which the action is pending convenes after the death of the plaintiff, and must be made within one year after that time, except by consent of parties. The limitation of time in the statute applies equally where there is no general administrator or executor as where there is one, because in such event the persons interested may have a revivor in the name of a special administrator."

Again, in Keffer v. Stuart, 127 Ark. 498, 193 S.W. 83, the court held that under our statute when a plaintiff dies the revivor may be made in the name of his representatives forthwith, whether the defendant consents to it or not. The court further said that the statute does not require that the defendant be consulted until after the expiration of a year from the time when the order of the revivor might have been first made, but that after that time, the order of revivor could not be made without the consent of the defendant.

The court also gave at the request of the plaintiff, among others, the following instructions:

"1. If you believe from the evidence that the deceased came to his death as the result of a pistol shot fired by some person other than himself, your verdict will be for plaintiff.

"2. The burden is upon the defendant insurance company to establish by a preponderance of the evidence that the deceased committed suicide, and unless you so find, your verdict will be for the plaintiff."

It is insisted that the court erred in giving instruction No. 2.

The burden was on the plaintiff to establish that the death of the insured resulted directly and independently of all other causes, from bodily injuries effected solely through external, violent and accidental means; but he was not required to prove...