Benefit Ass'n of Ry. Employees v. Jacklin

• Decision Date: 02 May 1927
• Docket Number: (No. 425.)
• Citation: 294 S.W. 353
• Parties: BENEFIT ASS'N OF RY. EMPLOYEES v. JACKLIN.
• Court: Arkansas Supreme Court

Page 353

294 S.W. 353

BENEFIT ASS'N OF RY. EMPLOYEES v. JACKLIN.

(No. 425.)

Supreme Court of Arkansas.

May 2, 1927.

Rehearing Denied May 23, 1927.

Appeal from Circuit Court, Pulaski County; Richard M. Mann, Judge.

Action by Lula B. Jacklin, administratrix, against the Benefit Association of Railway Employees. From a judgment for plaintiff, defendant appeals. Affirmed.

Rose, Hemingway, Cantrell & Loughborough, of Little Rock, for appellant.

Tom W. Campbell, of Little Rock, for appellee.

MEHAFFY, J.

The plaintiff, the administratrix of Harvey U. Boyd, deceased, brought suit on an accident insurance policy carried by deceased with the defendant, which provided for the payment of $2,000 upon loss of life resulting from bodily injury sustained through accidental means.

The plaintiff alleged that Harvey U. Boyd lost his life by accident on September 21, 1925. That Bessie Boyd was designated as beneficiary in the policy, and that she was also shot and fatally wounded on the same day. That plaintiff was also the administratrix of the estate of Bessie Boyd, deceased and alleged that proof of death had been made and asked judgment of $2,000, with interest, damages, and attorney's fees.

The answer denied that the death of Harvey U. Boyd resulted from bodily injury, sustained through accidental means, and that Harvey U. Boyd committed suicide, which is an excepted risk.

W. A. Lamb, the coroner of Pulaski county, testified that he was called to the Boyd home on September 1, 1925; he presented a diagram of the residence, gave the names of the persons who roomed there, and said that Mr. Boyd was lying on the floor and Mrs. Boyd was on one bed and the children were on the other bed. That she was lying on the side of the bed next to the wall, facing the wall, with a bullet wound in the back part of her brain that had entered and ranged to the left. That Mr. Boyd was lying on the floor with his feet partly under the bed on the side he was alleged to have been sleeping on, with his head slightly under the edge of the bed the children were sleeping on. That a pistol was in his hand and a bullet wound at a point just left of the center of the back of his neck. His right eye was bloodshot as if the bullet had gone toward it. The bed clothing was on fire. Mr. Boyd had his trousers on, and Mrs. Boyd was dressed in her night clothes. That the pistol was under Boyd's left hand, and his right hand was stretched out to the right. That there was a powder burn at the place where the bullet entered his head. It was about an inch and a half or two inches in diameter and spread out in different directions.

Witness testified that he was experienced in cases of death resulting from pistol shots. That the pistol was against Mr. Boyd's head, and also against Mrs. Boyd's head. The flesh on his head was slightly burned. If a pistol is held back from the flesh it will not lacerate the flesh but if it is held up against it it will explode and lacerate the flesh. He said that most suicides follow drinking sprees or a family disturbance. When witness arrived there, he said that Mr. Clark and Mr. Herrin were there, and there were four rooms in which people were sleeping in the house, and there were doors leading into the Boyd's room from the three in which Herrin, Clark, and Miss Baer were sleeping. Boyd's room was connected with four other rooms by doors. He said he did not notice any screens being cut. The next morning he searched all of the rooms, and in Mr. Herrin's room found a handkerchief which had soot or grease on it, and red as though it was blood. The bloody handkerchief was behind Mr. Herrin's bed. When he arrived there, Mr. Herrin was in Boyd's room. He got there between 4:30 and 5 o'clock, and he was then dressed. He did not notice whether he had his shoes laced. As he recollected, he had his collar and tie on. He was not positive whether Mr. Clark had a coat on. He was positive that Mr. Herrin did not have his hat on when he arrived.

"The pistol was right under Boyd's hand on the floor. He was not clutching the pistol. Miss Baer came into the room that morning. She was fully dressed. I can't take the pistol in my right hand and point the muzzle of it to the place on the back of my head that corresponds to the bullet hole in the back of Boyd's head. I will have to take it in my left hand. If I were going to shoot a pistol. I would shoot with my right hand."

When asked if he thought it practical for a right-handed man to shoot a pistol with his left hand, he answered:

"It is not often the case. I arrived there between 30 or 40 minutes after the accident occurred. A person would have time to dress in that time, and enough time intervened for some one to have placed a pistol under the man's hand. There were several persons in the room, and in coming to a decision I did not confine my questions solely to the persons in the house. I went back there every day for a week to get additional information. There were powder burns on Mrs. Boyd right around the wound at the back of her head. One of her hands was powder burned, but I don't remember which."

R. L. Allen testified, in substance, that he was on the Little Rock police force and was called to the Boyd residence on the morning of the shooting. Officer Bennet went with him.

"There was a bullet hole in the back of Mrs. Boyd's head. She was powder burned and there was a little blood on her. The best I remember, both of her hands were powder burned. I know that one of them was. The bullet entered Mr. Boyd's head a little to the left of center, and maybe a little above the line of the hair. As I remember, his right hand was on the floor and left hand was lying across the body, and the gun was lying a little under his right hand. I found an empty bottle on the table. It was an Angustora Bitters bottle.

"I don't think Mr. Clark was fully dressed when we got there. Mr. Herrin was in the other room. He was fully dressed. I saw Miss Baer also. The pistol was partially under Mr. Boyd's right hand."

He said he could put it anywhere and demonstrated, snapping the trigger twice.

A number of other witnesses testified to substantially the same facts, and there was also testimony that Mr. Boyd had been drinking, that he had had domestic troubles, that other men had been going out with his wife, and that he had remonstrated with her about this, but we do not deem it necessary to set out the testimony at length. There was a verdict against the appellant and a motion for a new trial, which was overruled, and exceptions saved and appeal taken to this court. The court gave the following instructions at the request of the plaintiff, over the objections of the defendant:

"On April 22, 1924, the defendant, Benefit Association of Railway Employees, issued and delivered to Harvey U. Boyd its policy of insurance, in which policy the defendant agreed that upon the death of the said Harvey U. Boyd during the life of said policy, if such death were caused solely through external, violent, and accidental means (excluding suicide, sane or insane), the defendant would pay to Bessie Boyd, wife of the said Harvey U. Boyd, if living, otherwise to the estate of the said Harvey U. Boyd, the sum of $2,000, with the further provision that if all monthly premiums on said policy were promptly paid on the dates due for a period of one year or more immediately preceding such death of the said Harvey U. Boyd, then in such event the defendant should pay an additional $100 upon the occurrence of such death of the said Harvey U. Boyd. All premiums upon said policy were promptly paid upon the dates due for a period of more than one year preceding the death of the said Harvey U. Boyd. On September 1, 1925, said Harvey U. Boyd died from the effects of a gunshot wound. A few hours after his death on the same day his said wife, Bessie Boyd, also died from the effects of a gunshot wound. Plaintiff, Lula B. Jacklin, has been appointed and is now the duly constituted and acting administratrix of the estate of the said Bessie Boyd. The above stated facts are undisputed. The defendant alleges in its answer in this case that the said Harvey U. Boyd committed suicide, and on that ground alone the defendant contends that it is not liable for the payment of the insurance under said policy."

"(2) The only issue to be determined by the jury in this case is whether or not Harvey U. Boyd committed suicide. It will be presumed in law, unless and until evidence is introduced to the contrary, that the said Harvey U. Boyd did not commit suicide. The law places the burden upon the defendant to prove by preponderance of the evidence that he did commit suicide before you would be justified in so finding. Unless you find from a preponderance of the evidence in this case that the said Harvey U. Boyd in fact did commit suicide, your verdict should be for the plaintiff.

"(3) If you find and believe that the evidence in this case is evenly balanced upon the question as to whether or not the said Harvey U. Boyd committed suicide, then your verdict should be for the plaintiff."

"(5) In attempting to determine whether or not the said Harvey U. Boyd committed suicide, you would be authorized to take into consideration all of the proved facts and circumstances which have been testified to in this case. Before you would be justified in finding that he did commit suicide, there must be evidence from which such a conclusion would be reasonable and probable, and not merely speculative or conjectural. If you find from a consideration of all the evidence in this case that it is merely speculative or conjectural as to whether the said Harvey U. Boyd committed suicide, your verdict should be for the plaintiff.

"(6) If you find for the plaintiff in this case, you should find for her in the sum of $2,100, with interest thereon at six per...