Franklin Life Ins. Co. v. Greer

• Decision Date: 20 January 1949
• Docket Number: No. 6394.,6394.
• Parties: FRANKLIN LIFE INS. CO. et al. v. GREER.
• Court: Texas Court of Appeals

219 S.W.2d 137

FRANKLIN LIFE INS. CO. et al. v. GREER.

No. 6394.

Court of Civil Appeals of Texas. Texarkana.

January 20, 1949.

Rehearing Denied March 10, 1949.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, Harrison County; W. H. Strength, Judge.

Suit by Gladys Greer Nobles, joined by her husband, Hamp Nobles, for herself and as agent for her brothers, against the Franklin Life Insurance Company, and Margaret Faye Greer, to recover on a life policy, wherein Margaret Faye Greer filed a cross-action to recover on the policy, and wherein the Franklin Life Insurance Company filed a bill of interpleader. From the judgment, all parties appeal.

Judgment affirmed in part and reversed in part and rendered in part.

Edwin M. Fulton and J. O. Duncan, both of Gilmer, and W. C. Hancock, of Pittsburg, for Franklin Life Ins. Co.

Mat Davis, of Gilmer and Sam B. Hall and Robert M. Sikes, both of Marshall, for Gladys Greer Nobles and another.

Florence & Florence of Gilmer, and D. S. Meredith, Jr., of Longview, for Margaret Faye Greer.

HALL, Chief Justice.

This suit was instituted May 26, 1947, by Gladys Greer Nobles, joined by her husband, Hamp Nobles, for herself and as agent for her brothers, against The Franklin Life Insurance Company, upon an insurance policy issued by it to James Vaulta Greer. These parties will be hereafter referred to as plaintiffs. It was alleged by plaintiffs that James Vaulta Greer was their brother, that on May 26, 1946, he was "voluntarily and willfully killed" by his wife, Margaret Faye Greer; that by the terms of art. 5047 of the Revised Statutes the wife was precluded from collecting the amount due under the policy; that plaintiffs' and assured's mother and father were dead, thus making plaintiffs the nearest of kin to assured and entitled to the proceeds of the policy; plaintiffs alleged further that proofs of death and demand for payment had been made by them to the insurance company; that payment had not been made within thirty days after demand. In addition to the sum due them under the policy the plaintiffs sought 12 per cent damages on the amount due, together with reasonable attorney's fees. Margaret Faye Greer was made a party defendant to the cause. On July 1, 1947, Margaret Faye Greer, hereinafter referred to as the wife, filed her answer denying the claim of plaintiffs to the proceeds of the policy and by cross action sought, as beneficiary under the policy, full recovery for the benefits arising out of same. A full recovery, it was alleged, would amount to $3,000 regular life insurance and $1,500 under the accidental rider attached to the policy. The wife also sought twelve per cent damages and attorney's fees for failure to pay her the proceeds of the policy within thirty days after her demand upon the insurance company therefor.

The Franklin Life Insurance Company, hereinafter referred to as the insurer, on June 30, 1947, filed its bill of interpleader, in which it admitted owing $3,002.41 to either plaintiffs or the wife, paid said amount into the registry of the court, requested the trial court to determine the issue of the rightful owner of said sum and prayed for a reasonable attorney's fee for filing the bill. At the same time the insurer filed its bill in the nature of a bill of interpleader in which it denied liability under the accidental feature of the insurance policy. The trial was to the court without a jury and resulted in a judgment that the plaintiffs take nothing; that the wife recover the $3,002.41 deposited in court by the insurer, $750 as attorney's fees, twelve per cent penalty as damages ($360) and six per cent interest on the $3,002.41 from September 5, 1946. The judgment was in favor of the insurer on the accidental feature of the policy and it was allowed $500 as attorney's fee for filing its bill of interpleader to be deducted from the amount deposited with the clerk of the court. From this judgment all parties have appealed.

By their first point plaintiffs contend that the trial court erred in rendering judgment against them for the reason that the evidence shows conclusively that the wife willfully killed her husband, the insured. This point presents the controlling question here so far as the plaintiffs are concerned. They cannot recover of the insurer under the terms of Revised Statutes, art. 5047, until they establish that the wife, either as principal or accomplice, willfully brought about the death of the insured. The judgment rendered by the court, the trier of the facts, that the plaintiffs take nothing reflects that the finding by the court was contrary to the plaintiffs' contention, that is, that the wife did not willfully bring about the death of the insured. If from the record such issue is a disputed one or if there is not sufficient evidence to raise the issue, then we would not be justified in disturbing the judgment in so far as it affects plaintiffs.

The record reveals that the insured was killed by the wife in Tyler, Texas, on May 26, 1946. In the early part of the night before the killing occurred, the wife and her husband, the insured, together with a Mr. and Mrs. Smithers who lived in another apartment in the same building, went from their home in Tyler to Glade-water to get some whiskey. They purchased the whiskey and returned to Tyler after midnight. After they had reached home the wife testified that the following occurred:

"Q. When you got back did you all go into your room and the other people go in their rooms? A. Well, we used the kitchen together. All of us were in through there one time or the other. I started to fix a sandwich, because we hadn't eaten any supper. I asked my husband what kind of a sandwich he wanted, and that is the first time I knew he was mad, he had been perfectly nice all day, and he had been perfectly nice all night, and when we came back and I said to him what kind of a sandwich do you want me to fix, and all at once he said, "Why don't you fix that son-of-a-bitch a sandwich that sent you the money." That is the first time I knew he was mad.

"Q. That was the first time that you knew he was mad? A. Yes, sir.

"Q. Where were you in the house at the time? A. I was at the ice box.

"Q. What, if anything, did you have in your hands? A. I had a knife slicing meat and I went on fixing my sandwich.

"Q. He made that statement you said he made to you, then what did you do? A. He said, `I am going to beat the Goddamned hell out of you," and lots of other stuff about my getting the money.

"Q. Then he told you to go ahead and make the fellow a sandwich that you got the money from, then what happened? A. Well, he said lots of things."

The wife testified further that immediately before the killing assured made a vile threat to do her serious bodily injury. The wife testified further:

"Q. Did he have anything in his hands when he said that? A. No, sir.

"Q. What did you do? A. I hit him.

"Q. You turned around on him and hit him at least nine times across the head with that knife, didn't you? A. I don't remember.

"Q. And he wasn't making a single, solitary threatening move toward you, was he? A. No, sir.

"Q. He hadn't made any effort to beat you, had he? A. He said he was going to.

"Q. He actually made no effort to do that, did he? A. No, sir.

"Q. And all the time, all during the time you were chopping him over the head and striking him here and here (indicating) and sticking him in the belly, he didn't offer one single bit of resistance, did he? A. No, sir. I didn't hit him in the stomach.

"Q. You didn't stick that knife in his stomach? A. No, sir, only on the head.

"Q. Is it your testimony that you didn't stick that knife in his belly? A. I don't remember it.

"Q. And he had never at any time said anything about killing you? He never had at any time? A. He had never threatened me before. He had threatened to beat me and did — (interrupted)

"A. I am talking about killing you?

"Mr. Florence: He didn't say he was going to kill her that night.

"Q. He had never threatened at any time to kill you, had he? A. No. sir.

"Q. You didn't kill him in self-defense, did you? A. No, sir.

"Q. Now, then, after you had killed him, the undertaker came down there, didn't he?

A. No, sir.

"Q. The undertaker didn't come in to take his body away? Mr. Th---- didn't come down there with an ambulance and take his body away? A. My husband wasn't dead. I didn't know he was hurt so bad, I didn't know how badly. When the detectives came—I stayed out of there. I thought he was drunk and was going to get them to help me. I didn't want him to beat me up again."

The wife in her deposition stated that the insured traveled extensively over Texas as a representative of the federal government and that she accompanied him on many of these trips. The insured assaulted her on numerous occasions particularly in Linden, Crockett and Livingston; that he was of a jealous nature and continuously accused her of being intimate with various men. The evidence also reflects that the wife entered a plea of guilty to murder without malice in the District Court of Smith County.

Taking the record as a whole it amply supports the implied finding of the trial court that the killing was not willful. We think Revised Statutes, art. 5047, must be construed strictly as though it were a criminal statute and for that reason we feel justified in following the definition of the word "willful" as given by the Court of Criminal Appeals, as well as that given by our civil courts. The indictment to which the wife entered her plea of guilty is not before us, neither is the judgment of conviction. A copy of a bill of indictment was read to the wife and she was asked if she entered the plea of guilty to it in the District Court of Smith County. She said that she didn't know; that she plead guilty to murder without malice. The Waco Court of Civil Appeals in Indemnity Ins. Co. of North America v. Scott, 278 S.W. 347, 349, affirmed Tex.Com.App., ...