Burrier v. Mutual Life Ins. Co. of New York

• Decision Date: 21 November 1963
• Docket Number: No. 36618,36618
• Court: Washington Supreme Court
• Parties: Rachel T. BURRIER, a widow, Respondent, v. MUTUAL LIFE INSURANCE COMPANY OF NEW YORK, a corporation, Appellant.

Page 266

63 Wn.2d 266

387 P.2d 58

Rachel T. BURRIER, a widow, Respondent, v. MUTUAL LIFE INSURANCE COMPANY OF NEW YORK, a corporation, Appellant.

No. 36618.

Supreme Court of Washington, Department 1.

Nov. 21, 1963.

Evans, McLaren, Lane, Powell & Moss, William J. Walsh, Jr., Barry H. Biggs, Seattle, Richard I. Fricke, New York City, for appellant.

Kahin, Horswill, Keller, Rohrback, Waldo & Moren, Clarence S. Lind, Seattle, for respondent.

HALE, Judge.

Plaintiff brings this action to recover on a $10,000 policy of life insurance; the defense is suicide.

On May 2, 1957, the defendant insurance company issued to Ralph O. Burrier its policy in the face amount of $10,000. It contained the following provision:

'Suicide--In event of the suicide of the Insured, sane or insane, within 2 years after the date of issue, the amount payable by the Company shall be limited to the amount of the premiums paid.'

Ralph O. Burrier was found dead on September 1, 1958, less than two years after the date of issuance. To the claim of his widow, Rachel Burrier, the defendant pleaded the defense of suicide under the above provision. From a judgment on the verdict for plaintiff in the face amount of the policy, defendant appeals, assigning as error (1) insufficient evidence to support the verdict and (2) the giving of an instruction on the presumption against suicide.

Many of the circumstances connected with the death of Ralph Burrier point to his suicide; others point to his death by accident. He was 39 years old, lived with his wife and two of his stepchildren on Whidbey Island, and enjoyed good health except for occasional headaches. His headaches were not disabling and did not impair his work or daily routine of life. The family had no serious financial problems, and all of them were steadily employed, including Burrier and his wife. Ralph Burrier liked his work. He liked working his own place and frequently hired out at farming tasks among neighboring farms, a calling which everyone said he found agreeable.

On the night before his death, Burrier had worked on a sketch for a new combination barn and livestock loafing shed. Less than a week earlier, he and his wife had gone to Mount Vernon to buy some Black Angus cattle and had conferred with a farm finance agency about a purchase loan.

No evidence was given to show that he suffered from mental depression or felt troubled about personal or family affairs; he was not facing any sort of police investigation or civil litigation. His wife said that he had never threatened or even intimated suicide, but, on the contrary, held to the Biblical view that it is a sin. His neighbors and friends deemed him a man of equable, good-natured disposition and no one testified differently.

The last person to see Ralph Burrier alive, Fred Grimm, sold him a package of cigarettes at Grimm's service station at about 11:45 o'clock that morning. He had known Burrier for several years, and observed nothing strange or unusual in Burrier's demeanor or appearance that morning. The two men had a friendly conversation--Burrier seemed cheerful and free from any depression at the time--approximately two hours before anyone learned of Burrier's death.

Ralph Burrier's body was found by his wife when she returned home between 1:45 and 2:00 P.M. He was lying two or three feet outside the doorway of a shed or outbuilding next to the house, a shotgun close to his feet. The door of the shed was open to a 90-degree angle.

For several months, Burrier had kept his shotgun, a Remington Model 11, semiautomatic, 12 gauge, behind some rolls of barbed wire in the corner of the shed to the left of the doorway. Near it were stored bales of wire. Loose wire was kept in an enclosed bin on the other side of the shed. Farm tools, nails, tires, odds and ends, and the presence of cobwebs made the place a sort of catchall storage shed. The door to the shed, between 2 and 2 1/2 feet wide, opened outward but only to 90 degrees to form a perpendicular to the outside wall. To enter or leave the shed, one had to step over an unusually high threshold or ledge which projected upward 18 inches from the floor across the bottom of the doorway.

The shotgun was equipped with two safeties, one a safety sear and the other a safety lock, each of which was in good condition. On tests, the gun, if cocked, with the trigger safety off, would not discharge when dropped; but a five or six pound pull on the trigger would fire it.

Ralph Burrier's body showed that the blast from the gun had entered through the mouth. The lower two front teeth were gone, the inside of the mouth and palate were torn and the back of the mouth obliterated. The skull was shattered internally but there was a conflict in the evidence as to whether the skin of the head and skull was broken. A very small exit wound, when compared to the great damage to the skull--which was reduced to the consistency of a 'bean-bag'--was noted, yet some witnesses had no recollection of an exit wound whatever. The left ear had been ruptured and appeared to have formed an exit channel for part of the blast, as brain tissue was found on the walkway some 20 feet away and in a cherry tree, shoulder high, several feet farther--both of which were to the left of the shed as one faces outside. Since the door would not swing open beyond 90 degrees, the location of the brain tissue could well have been considered by the jury in trying to locate decedent's position and the direction he was facing when the gun discharged, for the door could have served as a shield from one direction or the other.

Examination of the face showed it to be free of wounds but swelling and external discoloration of the area under the left eye proved internal hemorrhage. One witness said that the lower lip had a pronounced burn such as is produced by an open flame; the other witnesses observed no such symptom. Witnesses disagreed as to powder burns elsewhere on the face, some saying that there were none and one stating that he saw pock-like powder marks or burns all about decedent's face--that the marks had the general appearance of tiny dots or pinpoints.

A professional police officer, who had made numerous investigations of shotgun deaths, testified that the shot from this particular gun would not commence to scatter for a distance of 6 to 18 inches and would remain grouped within an area about the same as that of the barrel opening for that distance. He said that, if the gun were fired directly into the open mouth within a distance of 6 to 18 inches, it might leave no external marks or wounds on the face except for powder burns or flecks, but if fired while the barrel was in the mouth a large exit wound would show. A grayish smudge between the thumb and index finger of the left hand was never identified as a powder burn.

A few hours before his death, Ralph Burrier had told his stepson that he intended to do some plowing and to go pigeon hunting that morning. No suicide note was found; no autopsy was performed. Everyone close to this tragic event seemed to accept it as a suicide at the time.

The facts as summarized invite our attention first to that assignment of error directed to the quantum of proof. We agree with the defendant that there was not the slightest evidence of death from natural causes, or the accidental or intentional intervention of third persons. All causes then must be ruled out save suicide and accident.

When the plaintiff proved the contract of insurance and the death of the insured her case was made. The defendant then perforce assumed the burden of proving suicide by a preponderance of the evidence. Angelus v. Government Personnel Life Ins. Co., 51 Wash.2d 691, 321 P.2d 545; Graham v. New York Life Ins. Co., 182 Wash. 612, 47 P.2d 1029; Selover v. Aetna Life Ins. Co., 180 Wash. 236, 38 P.2d 1059. Was there evidence or lack of evidence from which the jury could in good reason find that the defendant had failed to carry this burden?

Two facts are conclusive, i. e., that Ralph Burrier died from a shotgun blast and that the charge entered his body through the mouth. Did he knowingly place the barrel of the gun in his mouth and press the trigger, or was the trigger accidentally actuated at the exact instant when the barrel was pointed at his open mouth, less than 18 inches from his face?

Facts pointing strongly to suicide are apparent, but many also point the other way. First, the absence of a note or message of any kind showing an intent to self-destruction, though only a solitary facet of the case, tends to negate the conclusion. Though the existence of a note or message would likely have made proof of suicide conclusive, its absence gave the jury room for analysis and evaluation of the facts. The insured's good health and congenial employment and his equable disposition disparage the idea of suicide. There is a total lack of mental depression or other emotional symptoms usually associated with suicide in this record. His economic situation was good; his family relationships amiable; he had no noteworthy economic problems; and he was facing no situation that might lead to jail, disgrace or dishonor. In short, he seemed a reasonably happy man in early middle life.

Absence of proof as to motive, or reason or intent, does not preclude a finding of suicide but may take the edge off some of the facts from which suicide is deduced. Conversely, proof of motive or reason or intent may so sharply outline the facts of death as to make the proof of suicide overwhelming. Or, the facts of the death alone may compel the finding of suicide, as in Travelers' Ins. Co. of Hartford, Conn. v. Miller, 7 Cir., 62 F.2d 910, as a matter of law. Our case falls within the first two situations.

Associate the act inducing death with proof of serious physical illness, or mental depression, or a suicide note or other communication of intent, and powerful indeed is the proof of suicide. But relate the same acts to...