Cole v. Standard Life Ins. Co

• Decision Date: 30 April 1934
• Docket Number: 31223
• Citation: 170 Miss. 330,154 So. 353
• Court: Mississippi Supreme Court
• Parties: COLE et al. v. STANDARD LIFE INS. CO

154 So. 353

170 Miss. 330

COLE et al. v. STANDARD LIFE INS. CO

No. 31223

Supreme Court of Mississippi

April 30, 1934

Division B

Suggestion Of Error Overruled June 11, 1934.

APPEAL from chancery court of Monroe county HON. JAS. A. FINLEY Chancellor.

Suit by T. J. Cole and another against the Standard Life Insurance Company, wherein a bill of review by insurer was filed by leave after decree for complainants. From a decree for insurer, complainants appeal. Affirmed.

Affirmed.

C. C. Brown and McDonald & McDonald, all of Memphis, Tennessee, and D. W. Houston, Sr. and Jr., of Aberdeen, for appellants.

Evidence of experiments, conducted under almost identical conditions following the happening of an event, is not new to the state of Mississippi. The conducting of experiments, and admission of testimony as to results thereof, was approved as early as 1908 in the case of Harrison v. Southern Railway Co., 93 Miss. 40, 105 Miss. 19, 21.

It is well settled in the state of Mississippi that bills of review are not favored.

Miss. Chancery Practice, page 471, section 640.

The rule--and it has not been changed--was laid down in Vanderburg v. Campbell, 64 Miss. 89, that the discretion in granting new trials (that of course being what allowance of the filing of a bill for review is tantamount to) is governed by legal rules rather than by the mere will or pleasure of the judge.

Garnett v. Kirkman, 41. Miss. 94; Vanderburg v. Campbell, 64 Miss. 89; Enochs v. Harrelson, 57 Miss. 465; Buckingham v. Wesson, 54 Miss. 526; Ennis v. Y. & M. V. R. R. Co., 118 Miss. 509.

It cannot be questioned that the law of the state of Mississippi requires that such a petition state facts sufficient to convince the court that, if true, justice would be better served by permitting the case to be reopened. That is the very nature of a bill of review, and no other purpose could possibly be served by it.

Applying the rule to the matters offered to be proved in the petition filed below by appellee, we find that there is not sufficient matter alleged therein to warrant a reopening of the case.

Griffith Mississippi Chancery Practice, sec. 637; Garnett v. Kirkman, 41 Miss. 94; Mayo v. Clancy, 57 Miss. 675.

It is elementary that statements in a letter are of no probative value even when admitted to have been written by one not a party to a suit.

Whiteside v. Elliott, 142 Miss. 43; R. R. v. Langdon, 71 Miss. 146.

Those having much experience in the trial of questions depending upon the genuineness of handwriting, will not require to be reminded that there is nothing in the whole range of the law of evidence more unreliable, or where courts and juries are more liable to be imposed upon.

Wilson et al. v. Beauchamp et al., 50 Miss. 24, 32; Roy v. First National Bank, 30 So. 411; Smith et al. v. Young, 134 Miss. 738, 767-8; 12 Southern Digest, Evidence, page 448, evidence key No. 561.

It cannot be disputed that there is a legal presumption against suicide. This presumption is of course capable of rebuttal, but that rebuttal must be with a preponderance of the evidence. So strong is that presumption that almost any other reasonable hypothesis must be excluded in order to warrant a finding of suicide.

Mass. Protective Association v. Crawford, 137 Miss. 876.

It is highly significant, we feel, that, in no case, where the court found suicide, did the bullet follow a downward and backward path, as did the bullet in this case.

Life & Casualty Ins. Co. of Tenn. v. Andrews, 149 Miss. 306; N. Y. Life Ins. Co. v. Bradshaw, 2 F.2d 457, 5 C. C. A.; Frankel v. N. Y. Life Ins. Co., 51 F.2d 105, 5 C. C. A.; Burkell v. N. Y. Life Ins. Co., 56 F.2d 105, 5 C. C. A.; Aetna Life Ins. Co. v. Tooley, 16 F.2d 243; Davis v. Reliance Life Ins. Co., 12 F.2d 248, 5 C. C. A.; Von Crome v. Travelers, 11 F.2d 350, 8 C. C. A.; N. Y. Life Ins. Co. v. Watters, 154 Ark. 569, 243 S.W. 831; New York Life v. Alman, 22 F.2d 98, 5 C. C. A.; Jefferson Standard Life Ins. Co. v. Jefcoats, 164 Miss. 659, 143 So. 842.

We invite the court's attention to the fact that the testimony of Mrs. Deavenport is positive testimony, and not opinion evidence.

Roy v. First National Bank, 30 So. 411; Smith v. Young, 134 Miss. 738.

As we have read and understand the law as laid down in Jefferson Standard Life Ins. Co. v. Jefcoats, cited by counsel, 143 So. 842, both from reading the opinion and the syllabus of the case, and from other cases decided by this and other courts, the rule is this: "The burden of proof to establish death by accident is upon him who alleges accident, aided by the presumption against suicide."

Stovall & Stovall, of Okolona, and Niles Moseley, of Jackson, for appellee.

It having been shown that Kate Kingsley Cole was found dead, killed by a pistol shot in the head, the law at once raised the presumption that death was involuntary. However, this presumption is a rebuttable one, and if the evidence is conflicting, or if some of the evidence is consistent with a reasonable hypothesis of death by the act of another, or by accident the case is one for a decision on the facts by a jury, if in the circuit court, and by the chancellor, if in the chancery court.

If the evidence shows nothing inconsistent with the hypothesis that the death was self-inflicted then it is a question of law for the court.

If only one reasonable inference can be drawn from the evidence and that is suicide, then there is no question for the jury. It is only a question of law for the court.

Mass. Protective Assn. v. Cranford, 102 So. 171; Knights of Honor v. Fletcher, 78 Miss. 377, 29 So. 523; Life & Casualty Ins. Co. v. Andrews, 115 So. 548; Frankel v. N. Y. Life Ins. Co., 51 F.2d 933; Burkett v. N. Y. Life Ins. Co., 56 F.2d 105; Mutual Life Ins. Co. v. Graves, 25 F.2d 705; N. Y. Life Ins. Co. v. Bradshaw, 2 F.2d 457; 2 Cooley's Briefs on Insurance, 3246.

In a suit upon a life insurance policy containing a provision for double indemnity in event of accidental death, the burden of proof to establish death by accident is upon him who alleges accident, unaided by the presumption against suicide.

Jefferson Standard Life Co. v. Jefcoats, 143 So. 842; Von Crome v. Travelers Ins. Co., 11 F.2d 350; Mass. Protective Assn. v. Cranford, 102 So. 171.

It is the established rule of this Supreme Court that the chancellor's judgment on disputed fact questions, sufficiently supported by evidence, is binding on appeal.

The chancellor's finding of fact will not be disturbed unless against the overwhelming weight of evidence, or manifestly wrong.

Quine v. Wolcott, 165 Miss. 325, 143 So. 424; Hibernia Bank & Trust Co. v. Turner, 156 Miss. 842, 127 So. 291; Burns v. Horn Bros., 163 Miss. 482, 143 So. 431; Clark v. Dorsett, 157 Miss. 365, 128 So. 79.

The right to file a bill of review rests within the sound discretion of the court and same will be permitted because of newly discovered evidence, cogent, material, and likely to produce a different result and one more favorable to petitioner had it been available at the original trial; absent, lack of diligence on the part of petitioner in discovering and presenting said evidence.

Vaughn v. Cutrer et al., 49 Miss. 782; Miss. Chancery Practice, secs. 637, 638, 640 and 641.

OPINION

Griffith, J.

The principal issue in this case, and to which all other issues are subsidiary, is whether the death of the insured, Kate Kingsley Cole, was by suicide or was accidental. Her death occurred in Okolona, Mississippi, her old home, on Saturday evening, April 16, 1932, at the end of a week's visit. About 7 o'clock P. M., she went into the kitchen of the home in which she had been sojourning that week and remarked that she must go to her room and finish her packing, by placing in her baggage her pistol which she had not yet placed therein. Shortly thereafter a pistol shot was heard in her room, which she occupied alone, followed by the thud of a heavy fall, and when the other occupants of the residence hastened to her room, they found her prostrate upon the floor on her back, with her left hand on her breast, and her right hand extended from her body with her pistol within three or four inches of her right hand, the handle thereof towards her hand. She died immediately. It was found that a bullet had entered her right temple just above the ear, and had made its exit at a point just under the left ear about an inch below the point of entrance. There was a circular powder burn at the point of entrance of the bullet about one inch in diameter. One cartridge of the pistol had been freshly fired.

There was no possibility that the shot was fired by any third person; there is no suggestion that such was the case. It was the contention of the insurance company that the physical facts lead to the inescapable conclusion that the death was by suicide, while the executor contended that, when taken in connection with the presumption against self-destruction, the facts would justify the conclusion of accidental death. In Mrs. Cole's room there was an old-fashioned wardrobe estimated at six feet, four inches high; the top shelf in this wardrobe was about six feet above the floor. It was known that she kept her pistol on the top shelf of this wardrobe; Mrs. Cole was five feet seven inches tall. There was a base to this wardrobe about one foot five inches high, and this base projected out in front of the doors about ten or twelve inches. The west door of the wardrobe was open when Mrs. Cole was found, and her body was lying parallel with, near to, and in front of, this wardrobe. The pistol was a small weapon of the old-fashioned revolver type with hammer and trigger.

It is the theory of the executor that when Mrs. Cole attempted to get the pistol from the top shelf of the...