Commonwealth Life Ins. Co. v. Auxier

• Decision Date: 28 May 1971
• Citation: 470 S.W.2d 335
• Parties: COMMONWEALTH LIFE INSURANCE COMPANY, Appellant, v. Dora Mae AUXIER, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 335

470 S.W.2d 335

COMMONWEALTH LIFE INSURANCE COMPANY, Appellant, v. Dora Mae AUXIER, Appellee.

Court of Appeals of Kentucky.

May 28, 1971.

Rehearing Denied Oct. 1, 1971.

J. K. Wells, Wells & Wells, Paintsville, for appellant.

Robert J. Greene, Perry & Greene, Paintsville, for appellee.

DAVIS, Commissioner.

Shortly after 5 a.m. on June 10, 1969, Clarence Auxier died as the result of a pistol wound in his forehead. At the time of his death Auxier had an insurance policy issued by the appellant, which afforded insurance coverage of $1,000 in case of his death by natural cause and $4,000 coverage in case of accidental death. The policy provided that:

'No accidental death benefit will be payable, but the benefit for natural death will be payable, in each of the following cases: * * * (3) if the injury or death is caused or contributed to by (a) self-destruction, whether sane or insane * * *.'

Auxier shot himself either deliberately or accidentally. His widow, the appellee, successfully asserted in the trial court that the death was accidental, entitling her to the enhanced payment provided by the policy for accidental death. The insurance company contends that it was entitled to a directed verdict and judgment n.o.v. because there was no evidentiary basis for a finding of accidental death vis-a-vis a finding of suicide.

At the time of his death Clarence Auxier was thirty years old, had been married for eight years, and was the father of two children, ages six and seven. So far as appears, he had had no illness. However, he was unemployed and awaiting trial on two indictments, one for grand larceny and the other for striking and wounding another with a deadly weapon.

Mrs. Auxier, the appellee and widow of Clarence, testified that Clarence came home about 5 a.m. on the day of his death. He called to her, and she let him in She and the decedent proceeded to the bedroom where Mrs. Auxier had slept with where Mrs. Auxier had slep with their small son. Clarence was 'drinking' but able to walk and talk. He engaged his wife and son in conversation for about twenty minutes, although the record does not disclose any particular topic of that conversation except that the decedent stated that his brother was to come by for him, and decedent asked his wife to arouse their small daughter so he could speak to her before leaving with his brother.

During the twenty minutes, decedent had in his hands a .38 caliber Smith & Wesson revolver. He cocked and uncocked the piece and toyed with it, although his wife asked him to put it away. The wife went to arouse the little girl, but before she could do so heard the report of one shot from the pistol. It was the fatal shot. The little boy had accompanied his mother as she went to awaken the other child, so there was no one in the bedroom except Clarence Auxier when the fatal shot was fired.

In describing the circumstances, Mrs. Auxier testified:

'And he sat down on the bed and he had the gun out handling it and changing it from one hand to the other. He had it cocked and dropped it a time or two. I tried to get him to let me pick it up, and he wouldn't let me do it, and he said his brother was coming after him, and he wanted me to get the little girl up, and he had the gun in his hand, and I went to get her, and when I got middleways of the room where she was sleeping, I heard the gun and I run back and when I seen the blood, I didn't go any further, and I called my brother.'

Mrs. Auxier's brother testified that he found decedent 'sitting on the edge of the bed.' According to the witness, decedent was 'bowed over, and the gun was laying down at his feet with the barrel pointing from him.' The bullet had not emerged from the skull.

A detective of the state police, testifying to qualifying training and experience in such matters, said that he examimed the body and found a fatal bullet wound 'directly in between the eyes.' He said the found both internal and external powder burns, and expressed the opinion that the muzzle of the pistol was within three inches of the forehead when the shot was fired. This conclusion was based on the nature of the powder burns. The same witness described the angle of entry of the bullet as 'a level angle; straight * * * right straight back.'

Decedent's brother was not presented as a witness, although Mrs. Auxier had said that decedent had spoken of his brother's plan to come by after him.

In order to present a submissible jury issue, it was incumbent on the appellee, as plaintiff, to adduce evidence, direct or circumstantial, sufficient to sustain a verdict for appellee. In testing whether appellee did meet that burden, the court will consider all inferences that fairly and reasonably may be drawn from the evidence. If the evidence, considered with the proper inferences to be drawn from it,...