Dortch v. New York Life Insurance Company

• Decision Date: 19 June 1959
• Docket Number: No. 16052,16053.,16052
• Parties: George L. DORTCH and Gwendolyn A. Bredlow, Appellants, v. NEW YORK LIFE INSURANCE COMPANY, Appellee. NEW YORK LIFE INSURANCE COMPANY, Appellant, v. George L. DORTCH and Gwendolyn A. Bredlow, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

268 F.2d 149 (1959)

George L. DORTCH and Gwendolyn A. Bredlow, Appellants, v. NEW YORK LIFE INSURANCE COMPANY, Appellee.

NEW YORK LIFE INSURANCE COMPANY, Appellant, v. George L. DORTCH and Gwendolyn A. Bredlow, Appellees.

Nos. 16052, 16053.

United States Court of Appeals Eighth Circuit.

June 19, 1959.

Phillip Carroll, Little Rock, Ark. (Rose, Meek, House, Barron and Nash, Little Rock, Ark., were with him on the brief), for New York Life Ins. Co.

William H. Bowen, Little Rock, Ark. (William L. Terry, Little Rock, Ark., was with him on the brief), for George L. Dortch and Gwendolyn A. Bredlow.

Before JOHNSEN, VOGEL and MATTHES, Circuit Judges.

VOGEL, Circuit Judge.

These appeals arise out of the issuance of two insurance policies by New York Life Insurance Company on the life of Reuben W. Bredlow, now deceased, and in which plaintiffs are the named beneficiaries. Diversity of citizenship and amounts involved supply the requirements for federal court jurisdiction.

Both policies provide for double indemnity benefits in the event that death of the insured resulted directly and independently of all other causes from bodily injury effected solely through external violent and accidental causes or means.

George L. Dortch and Gwendolyn A. Bredlow, hereinafter referred to as plaintiffs, are the appellants in No. 16,052, in which the main question for determination is whether there was an adequate evidentiary basis to make the issue of suicide as opposed to accidental death one of fact for the jury. In No. 16,053, New York Life Insurance Company, hereinafter referred to as defendant, is the appellant. Its appeal asserts that in the event of a reversal in No. 16,052, which would sustain the jury's finding that the insured's death was accidental, a new trial should be granted because the trial court made numerous errors which should require the remanding of the case for a new trial.

Plaintiffs each filed proof of death claim with the defendant wherein death by accidental gunshot wound and double indemnity benefits were claimed. The defendant paid each of the plaintiffs $5,000.00, being the principal sum in each policy, but refused to recognize liability under the double indemnity clause. It asserted as an affirmative defense that death resulted from suicide or self-destruction. The cases were joined and tried to a jury November 5 and 6, 1957. The only question presented to the jury was whether the insured committed suicide. The jury returned a verdict for plaintiffs.

At the close of plaintiffs' case and at the close of the trial, the defendant had moved for a directed verdict in each case. On November 15, 1957, defendant filed a motion for judgment in accordance therewith and in the alternative moved for a new trial. On December 9, 1957, the trial court entered judgment in accordance with the jury verdict in each case in the amount of $6,618.76 (policy $5,000.00, statutory attorney's fees $750.00; 12% penalty and interest at 6% from November 6, 1957). Thereafter on December 16, 1957, the court heard argument on defendant's motion for judgment notwithstanding the verdict, or, alternatively, for a new trial.

Some months later, on April 28, 1958, the trial court entered an order directing judgment for defendant and denying the alternative request for a new trial. From this order plaintiffs filed notice of appeal on May 8, 1958, (case No. 16,052) and on May 15, 1958, defendant filed notice of appeal (case No. 16,053), from that portion of the April 28th order which held that the trial of the case was free from error and denying a new trial.

We will consider first case No. 16,052, involving the correctness of the court's order entering judgment notwithstanding the verdict. Both policies involved are Arkansas contracts so that we are herein governed by the substantive law of that state. In considering the question of the correctness of the court's order granting judgment notwithstanding the jury verdict, we must take that view of the evidence and the inferences reasonably deducible therefrom as will tend to support the jury verdicts.

We deem it necessary to set forth the evidence in some detail, bearing in mind the rule that unless reasonable minds could not disagree as to the ultimate facts the order of the District Court was in error and the judgment based on the jury verdicts must be reinstated. New York Life Ins. Co. v. Redmon, 1935, 191 Ark. 1003, 88 S.W.2d 324; Metropolitan Life Ins. Co. v. Graves, 1940, 201 Ark. 189, 143 S.W.2d 1102.

Reuben W. Bredlow, the insured, died at the age of 57 in Pulaski County, Arkansas, on November 11, 1956. He had been a long-time resident near a road intersection commonly known as Bredlow's Corner. Plaintiffs' evidence indicates that Bredlow was a farmer, owner of a cotton gin and of cattle, and was in good financial condition. He belonged to the North Little Rock Elks Club in which he was active and where he had many friends. Each day he spent considerable time at his office at Bredlow's Corner and on rainy days he enjoyed playing cards there with his friends. He was an avid Bible reader and would go to his office early each morning to read his Bible. His home life was normal and happy. He and his widow, one of the plaintiffs herein, had been married for 29 years. He idolized his daughter and grandchildren and was particularly fond of a granddaughter named Joe-Boy. For more than 20 years the deceased had been a somewhat heavy drinker. Nevertheless, he went on with his work and to those who worked with him it was not noticeable. About a year and a half before his death he began to taper off in his drinking habits and became interested in church, to which the Reverend Mr. Michael Carozza testified, "He was making very good progress."

The deceased was an avid outdoors man, getting much enjoyment out of hunting and fishing. Shortly before his death he cleared land and made roads to facilitate squirrel hunting on his property. The deer season opened the day following his death and he had made plans to go out on that day. The deceased and Mr. Carozza had planned a fishing trip to the Gulf Coast for the week-end following November 11th.

The deceased kept his guns at his office. Although he was an expert with the use of a gun, he was noted as being extremely careless with them. His guns were usually kept loaded and most of the time with the safeties off. Traveling to and from hunting he would place his guns loaded and uncovered either on the seat or in the back of the truck. When drinking, he had been known to shoot between the legs of his friends.

The weapon with which the deceased was killed, his deer gun, was a Magnum 12-gauge Winchester pump with a 30-inch barrel. It was 4 feet 1½ inches long and measured exactly 3 feet from the end of the barrel down to the curve of the trigger. This gun was always loaded and usually kept in a corner of the back room of his office. At the time of his death the deceased's 32 automatic pistol, with a clip full of bullets and one in chamber, was lying in the top left-hand drawer of his desk, the same desk upon which his Bible and glasses were found.

On October 8, 1956, the deceased had a physical check-up at a Little Rock, Arkansas, infirmary. It was determined that he was in a "run-down condition" and that he should go to a hospital "for the purpose of giving him rest". While in the hospital he had sedatives, vitamins, tranquilizers, and male hormone therapy. The check-up revealed that he had a bundle branch block of the heart which he had apparently had for some time. His blood pressure was satisfactory. Upon discharge the doctor concluded that he was in a "fairly good general condition"; and that "If he will continue using a minimum amount of alcohol, adequate protein and vitamin intake and sedentary activities he will no doubt do very well."

The day before his death, November 10th, the deceased spent considerable time in his office. That evening he had an enjoyable dinner with his wife, followed by a quiet evening at home watching television. He arose the next day about six o'clock. The evidence revealed that he was cheerful. He tried on the suit that he was going to wear to church that day. As was his custom, he went to his office to read the Sunday paper. Also according to custom, Mrs. Bredlow went to Sunday School, then to church, where she usually met her husband, who would come there from the office. Sometime before 10:30 a. m. Bredlow was killed by a charge of double 00 buckshot from his deer gun. He was found lying on his back in the back room of his office. His arms were alongside of his body and the death weapon between his legs, pointing toward his left side. The shot entered just under his chin and went straight up through the ceiling, hitting a light located in the room. He had powder burns on his neck. His glasses were lying on his desk, together with his Bible. In oral argument the defendant made point of the fact that he had left his Bible open at the Twenty-Third Psalm. In rebuttal plaintiffs' counsel presented the Bible for the court's inspection, directing attention to the fact that pages 504-505 (pages including the Twenty-Third Psalm) were more significantly yellowed or deteriorated than the other pages, indicating that Bredlow commonly left it open at that point.

The deceased left no will and made no preparation for the distribution of his estate; he left no letters or notes. The death gun had discharged accidentally before. It was dirty and needed cleaning, but there was no evidence that he was cleaning the gun at the time of the mishap. According to the views of both plaintiffs' and defendant's gun experts, it could have gone off accidentally.

Defendant's evidence, in support of its suicide theory, tended toward a conclusion contrary to that deducible from plaintiffs' evidence. It indicated that in the last two or three months prior to his death Bredlow became a changed man; that he didn't talk as much and...