Bryan v. Aetna Life Ins. Co.

• Decision Date: 05 September 1941
• Docket Number: 4.
• Parties: BRYAN v. AETNA LIFE INS. CO.
• Court: Tennessee Court of Appeals

160 S.W.2d 423

25 Tenn.App. 496

BRYAN v. AETNA LIFE INS. CO.

No. 4.

Court of Appeals of Tennessee, Eastern Section.

September 5, 1941

Certiorari Denied by Supreme Court February 7, 1942.

Appeal in Error from Chancery Court, Knox County; A. E. Mitchell Chancellor.

Suit on a life insurance policy by Gladys Smith Bryan against the Aetna Life Insurance Company. Decree for complainant, and defendant appeals in error.

Reversed and suit dismissed.

AILOR J., dissenting.

Lee Cox & Hier and Kennerly & Key, all of Knoxville, for appellant.

Clements & Clements and K. E. Steinmetz, all of Knoxville, for appellee.

McAMIS Judge.

On January 14, 1935, the Aetna Life Insurance Company, defendant below, issued to Augustus P. Bryan a policy of life insurance in the sum of $5,000 payable to Gladys Smith Bryan, his wife. Augustus P. Bryan died January 3, 1936, under circumstances to be related, as the result of a bullet wound in the right temple. The policy contained a provision limiting the liability of the insurer to a return of the premiums paid in case insured should commit suicide within two years from the date of the issuance of the policy.

The widow, as beneficiary under the policy, filed the original bill herein November 18, 1937, seeking a recovery upon the policy. The insurer, to be referred to as defendant, answered the bill asserting that Augustus P. Bryan committed suicide and invoking as the sole ground of defense the suicide provision of the policy. Upon the pleadings a single issue was formulated: "Did Augustus P. Bryan commit suicide?" This issue has been submitted to three juries. The first jury resolved the issue of suicide in favor of the beneficiary. The Chancellor overruled defendant's motion to withdraw the case from the jury upon the ground that there was no evidence to support a verdict in favor of the complainant and overruled a motion for a new trial. Upon appeal to this Court the verdict of the jury was sustained but the Supreme Court granted certiorari and, upon a hearing, concluded that the Chancellor correctly declined to withdraw the case from the jury and dismiss it, as insisted by defendant, but that the case should be reversed for error in the charge to the jury. The opinion by Chief Justice Green is reported under the style of Bryan v. Aetna Life Insurance Company, 174 Tenn. 602, 130 S.W.2d 85, 86.

Following the remand ordered by the Supreme Court the case was again tried before the Chancellor and a jury and at the conclusion of all the evidence defendant again moved the court to withdraw the case from the jury and dismiss the suit for lack of evidence to support a verdict in favor of complainant. This motion was overruled and the case submitted to the jury resulting in a mistrial because of the inability of the jury to agree upon a verdict. The evidence and proceedings at the second trial have been preserved by a wayside bill of exceptions.

At the last trial defendant at the conclusion of all the evidence again moved the court to discharge the jury and enter a decree in its favor because there was no substantial evidence requiring the submission of the case to the jury. This motion was overruled, the case submitted to the jury and the issue of fact resolved in favor of complainant. Defendant thereupon filed a motion for a new trial which was overruled and it has appealed in error to this Court, insisting that in view of certain additional facts bearing upon the issue of suicide appearing in evidence at the second trial, now preserved by the wayside bill of exceptions, and additional facts reflecting upon this issue under the proof adduced at the last trial the Chancellor erred in not withdrawing the case from the jury and entering a decree in favor of defendant. It is insisted that, under the proof now appearing in the record, suicide of the insured has been established as a matter of law. Other assignments relating to the charge of the court and the exclusion of certain evidence are made. Under the established rule we review first the action of the court in submitting the issue of suicide to the jury at the second trial as reflected by the wayside bill of exceptions.

As already noted, the Supreme Court held the proof introduced at the first trial sufficient to carry the case to the jury. Since it is now insisted that additional facts establish the suicide of insured as a matter of law, for convenience and for purposes of comparison we quote from the opinion of the Chief Justice the concise summary of the facts appearing in evidence at the first trial and upon which the Supreme Court concluded that, at that trial, the case was properly submitted to the jury:

"The insured drew a salary of $200 a month. Evidence in the case indicates that he had accumulated some property and was worth about $5,000 at the time of his death. Other evidence introduced indicates that some discrepancies were discovered in his accounts after his death. These discrepancies, however, amounted to only $200 or $300, and it is possible that they resulted from irregularities rather than any conscious wrongdoing on the part of the insured. At any rate, these discrepancies had not been discovered during his lifetime, he was not being pressed about them, and he seems to have been abundantly able to adjust them.

"The insured had lived in Knoxville but a short while at the time of his death. Previously he had worked in Chattanooga, in Tampa, Florida, and perhaps other places in the same line of business. There is proof indicating that he was not satisfied with his local employment at Knoxville and had made application to another loan company for a similar job shortly before his death without success.

"So far as the record shows, there was nothing in the home life or the business life of the insured to make existence unbearable and we are not able to discover a motive for suicide on the evidence appearing in this record.

"On the morning of January 3, 1936, the insured left his home in good spirits, according to his wife, and reached his office at about eight-thirty, according to the testimony of employees there. These employees noticed nothing unusual in his demeanor. After being in the office for a few minutes, the insured left to inspect certain property upon which an application had been made for a loan.

"Shortly after nine o'clock, at a point on the Ramsey Ferry Road, a few miles out of Knoxville, an automobile was seen by a witness Ford to stop for a few minutes, back up a short distance, and turn off on a road that led from this highway to a place known as the Kreis Dairy Farm. The automobile proceeded along this dairy road for a short distance and stopped on the side of the road. A little later in the morning, the insured was found in this automobile, shot through the head, with a pistol in his hand. An ambulance was summoned, insured still being alive, but he died on the way to the hospital.

"The witness Ford, who saw this car stop on the highway and then turn up the dairy road, noticed but one person in the car. The point at which the car came to rest was about 315 feet from the river and from a house boat in which the witness Ford and his family lived. Ford said that the car was within his view during the time it stood on the dairy road. That he was sitting at the window looking at the car almost constantly, only getting up occasionally to go to the stove to spit. He was chewing tobacco. Ford did not see anyone approach or leave the car and, as stated above, he noticed only one person in the car.

"Obviously the insured could not have operated this car in the manner in which Ford testified had he received this wound in the head before the car came within Ford's vision. However, although he said he was looking at the car nearly all the time, and evidence indicates that his house boat was a flimsy structure, Ford heard no shot while the car was stopped on the dairy road or before--the distance of the car from Ford being about 100 yards. The pistol found in the insured's hand was a .32 caliber, long-barreled, Smith & Wesson.

"Two witnesses, going to the Kreis Dairy Farm on business, passed the automobile in which the insured was found as that car stood on the side of the dairy road. These witnesses paid no attention to the car or the occupant as they passed. Shortly after they reached the dairy farm, a woman seems to have passed the parked car, noticed something that excited her very much, and came to the farm in a flustered condition. On her report, the witnesses who had previously passed the car went back to make an investigation. They stopped their own car, got out and went to the other car, saw the body of the insured slumped over, the pistol in his hand and pointing out the window. Seeing insured with a pistol, not realizing his condition, the witnesses summoned officers who arrived shortly.

"The window on the driver's side of the car was down. All the other windows of the car were closed. There was no broken glass or any sign of a bullet in the car. The clothing of the insured did not appear to be disarranged. The proof tends to show that the insured did not own a pistol. Neither did he own an automobile. There is no evidence in the record tending to show to whom the pistol in the insured's hands, or the automobile in which the insured was found, belonged. Nobody knows the owner either of the weapon or of the car.

"The body of the insured was sent to his old home in Tampa, Florida, for burial. Some three weeks thereafter, it was disinterred and an examination made of his head by a pathologist, apparently of good qualifications and experience. This doctor testified as to the course of the ball through the head. It entered on the right side and lodged under the skin on the left side.

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