Falster v. Travelers Ins. Co.

• Decision Date: 04 March 1965
• Citation: 216 Tenn. 137,20 McCanless 137,390 S.W.2d 673
• Parties: , 216 Tenn. 137 Reba FALSTER, Petitioner, v. The TRAVELERS INSURANCE COMPANY, Respondent.
• Court: Tennessee Supreme Court

Page 673

390 S.W.2d 673

20 McCanless 137, 216 Tenn. 137

Reba FALSTER, Petitioner, v. The TRAVELERS INSURANCE COMPANY, Respondent.

Supreme Court of Tennessee.

March 4, 1965.

Rehearing Denied May 7, 1965.

Second Petition for Rehearing Denied June 2, 1965.

Glasgow & Adams, S. McP. Glasgow, Jr., Richard D. Taylor, Nashville, for respondent, Travelers Ins. Co.

Joseph L. Lackey, Charles Galbreath, Nashville, for petitioner, Reba Falster.

HOLMES, Justice.

This suit seeks a recovery under the deouble indemnity provision of a policy of insurance issued by the defendant, The Travelers Insurance Company, on the life of Victor M. Falster. The Insurance Company paid to the plaintiff, Reba Falster, the face amount of the policy, $10,000.00, and she has instituted this action seeking an additional $10,000.00 alleging that the insured's death resulted from accidental bodily injuries which were the direct and independent cause of death.

In the Trial Court, where the case was tried to a jury, there was a verdict for the plaintiff, Reba Falster, the named beneficiary in the policy, for $10,000.00 together with interest thereon. By the majority opinion of the Court of Appeals, that judgment was reversed and the suit was dismissed. We have granted certiorari, and the cause has been argued before this Court.

The majority of the Court of Appeals concluded that the Trial Judge committed error in not sustaining defendant's motion for directed verdict made at the end of all the evidence. While the testimony of the witnesses is in conflict as to certain of the circumstances surrounding the death of the insured, the following facts appear in the record without conflict:

In 1956, Victor Falster entered into a business arrangement with Emory White to distribute in Nashville heaters manufactured by Mr. White's company at Albertville, Alabama. Falster was 34 years of age, a married man with four children. White was 53 years of age. His wife was 28 years old. They had a small boy about six years old.

Shortly after this business arrangement was made, Falster and Mrs. White began having in affair. Mrs. White and Falster met at various places, love letters were exchanged between them, to the knowledge of the spouse of each of them. In the late fall of 1956, Mrs. White separated from her husband, stating that she and her child were going to her mother's in Birmingham. White later learned she was not at her mother's. Having become suspicious of the relationship between his wife and Falster, White employed a detective in Nashville to locate his wife and son. He came to Nashville, found that his wife and son were living in an upstairs apartment in a residence in that city.

Prior to the time he came to Nashville, he had found in his wife's effects love letters from Falster to her. While in Nashville, he contacted the plaintiff, Mrs. Falster, who met with White and his brother and gave White love letters, written by Mrs. White to Falster, which Mrs. Falster had found. In this conversation with Mrs. Falster, White's brother advised her that he and White and Mrs. White kept guns, and that if they ever needed one they would have one. In this connection, Mrs. Falster testified:

'Q. In other words, they told you 'We all carry guns, but we are not going to hurt him?'

'A. Yes.'

This meeting between White, his brother and Mrs. Falster took place about three months before Falster's death on April 8, 1957. A few weeks after this meeting Mr. and Mrs. Falster had an argument about his relationship with Mrs. White and separated. Mrs. White had been frequently calling Mr. Falster on the phone at home. On occasions he would leave home following these calls. White took his son from Mrs. White's apartment in Nashville and later took Mrs. White back to Albertville, Alabama, where they moved into a house trailer following a reconciliation.

Certain of the love letters between Mrs. White and Falster were introduced in evidence at the trial, at which time the following stipulation was entered into:

'* * * that if these letters prove to be competent, that both Mr. and Mrs. White and Mr. Falster knew all about the correspondence and knew all about the facts.

'THE COURT: You stipulate that they all knew about them.

'MR. LACKEY: If they are competent, if they are admissible. That they all knew about them, they had them in their possession, knew all about the facts and circumstances surrounding this affair. Will you stipulate that Mr. Glasgow?

'MR. GLASGOW: Certainly. That is all I wanted to prove.'

On the morning of Sunday, March 24, 1957, Falster came to the trailer at Albertville, Alabama, in which the Whites were living, and asked to talk to White. Falster and White went out to Falster's automobile and had a conversation, which is described as follows by White:

'A. He said, Emory, if you will let me have Teana (Mrs. White) and Reggie (White's son), I will assure you I will take the best care of them in the world, and I looked at him and said----

'Q. You have to go ahead and say it.

'A. I said you low-down sneaking son of a bitch.

'And he said well, Emory, I didn't understand that you felt that way. He said I won't make any more trouble for you.

I said you mean you won't interfere with my affairs, or you won't interfere with Teana's affairs, or Reggie's life.

And he said no, no more as long as you are living.

I said you mean that as a threat? He said no, I didn't mean it as a threat. He said I just mean I won't interfere as long as you are living.

And he wanted to shake hands, and I declined to shake hands'.

White testified that he was armed while having this conversation with Falster in Falster's automobile and that later his wife told him that Falster was armed at that time. Mrs. White, testifying about six years later, did not remember telling White that Falster was armed.

As stated, when Mrs. White returned with her husband to Alabama, the Whites moved into a house trailer. While living in this trailer White shot at Mrs. White. She was a witness for the plaintiff in this case and testified she was sure that she told Falster of the fact White had shot at her. She further gave the following testimony:

'Q. Did he threaten on other occasions?

'A. I don't remember. He had become a violent person. He had threatened my mother and father--he had threatened to kill them.

'Q. He had even threatened to kill himself?

'A. Yes, he had threatened to kill himself may times.

'Q. Your best judgment would be you told Victor of that?

'A. Yes, I would say so.

'Q. Had you also been getting telephone calls from Victor?

'A. After I came back he couldn't call me and he made me promise to call him at least every other day and I called him.'

Mrs. White testified she made these phone calls away from Albertville so the calls would not go through the local operator, that if she failed to call Falster he would come to Albertville to see her, that she met him there at least twice after March 24th, but that to her knowledge Mr. White did not know of these meetings.

Falster's distraught state of mind at this time over Mrs. White's failure to return to him is indicated by the concluding paragraph of his letter to her dated April 6, 1957, in which he stated:

'Out of fairness to my devotion and anxiety, please let me know how you are. Whatever your wishes are, you know I will do all I can to give you happiness. I want you because I love you. I need you because you have so much of me, and I of you.

All my love,

all my life,

Victor'

Mr. White testified that, when Mrs. White received a letter dated April 5, 1957, signed by a business associate of Falster's she handed the letter to White 'and kind of smiled about it.' Among other things, this letter stated:

'I wish you would please call write or go to Victor. It is getting hard to keep his mind off you long enough for him to watch over his business.'

On the morning of April 8, 1957, Mr. and Mrs. White went to Huntsville, Alabama, where Mrs. White placed a call to Falster in Nashville in a public phone booth, with Mr. White in the booth with her. Mr. White described this phone conversation from Huntsville, as follows:

'A. Yes, and from a public booth, and I was in the booth with her. She made the call to Mr. Falster, and what I remember in particular, I was hearing both sides of it, I had the receiver tilted so I could hear it, and what I remember in particular was him saying you get Reggie and you all get in that Buick and come up here to Nashville and I will fix it where he can't do a thing about it.

At that point I took the phone myself and told him that he had told me just previously a couple of weeks that he wasn't going to interfere with my affairs, and I had tried to feel like he made that in good faith, and he denied it.

He said what he said was he would not harm me in any way. My temper flared up and I snatched the phone back on the hook and broke the connection.'

Falster had been urging Mrs. White to arrange for another meeting between him and White. Also, during this time, Falster was aware of White's foundness for guns.

As the Whites were on their way home from Huntsville on the morning of April 8, 1957, Mrs. White brought up the subject of Falster's request for a meeting. White agreed to have the meeting. He and Mrs. White drove to Guntersville, Alabama, and called Falster and arranged to meet him at Fayetteville, Tennessee. The Whites then drove from Guntersville, Alabama, to Fayetteville, and Falster drove there from Nashville. Although Mrs. Falster testified Falster did not own a pistol, he came to this meeting with a pistol in the glove compartment of his car and a shotgun under the front seat of his car. White came to the meeting with a 22 target pistol hidden in a sack with a bottle of whiskey. From Fayetteville Falster, White, and Mrs. White rode in Falster's automobile out on a country road in a sparsely settled area and stopped. Falster was in the driver's seat, Mrs. White was in the middle,...