Great Southern Life Ins. Co. v. Watson, 7019

• Decision Date: 06 February 1961
• Docket Number: No. 7019,7019
• Parties: GREAT SOUTHERN LIFE INS. CO., Appellant, v. Georgia M. S. WATSON, Appellee.
• Court: Texas Court of Appeals

Page 921

343 S.W.2d 921

GREAT SOUTHERN LIFE INS. CO., Appellant, v. Georgia M. S. WATSON, Appellee.

No. 7019.

Court of Civil Appeals of Texas, Amarillo.

Feb. 6, 1961.

Rehearing Denied March 6, 1961.

Vinson, Elkins, Weems & Searls, Houston, B. Jeff Crane, Jr., Houston, of counsel, for appellant.

Simpson, Adkins, Fullingim & Hankins, Amarillo, for appellee.

NORTHCUTT, Justice (dissenting).

Mrs. Georgia Watson sued Great Southern Life Ins. Co. to recover upon an insurance policy issued to William Edison Watson, her husband, in which she was beneficiary. The policy provided double indemnity in case of death by accident. The parties will be referred to herein as they were in the trial court. It is undisputed that the policy was in force at the time of the death of William Watson and that Watson died from gunshot wounds. Plaintiff alleged that William Edison Watson was accidentally killed as a result of a gunshot wound and not from suicide.

The defendant answered admitting the policy was in force on September 9, 1959 at the time of the death of Watson; that said policy provided for the payment of $25,000 to the beneficiary of said policy subject to the exceptions and provisions in said policy and further provided for the payment of an additional sum of $25,000 to the beneficiary upon receipt of due proof that the death of insured, William Edison Watson, resulted solely from bodily injury caused directly and independently of all other causes by accidental, violent and external means. It pleaded the insured, William Edison Watson, died from suicide and self-destruction on the 9th day of September, 1959 and that defendant was not liable herein because the provisions of the policy provided that if the death of insured occurred within two years from the date of issue thereof, by suicide while same or insane, the liability of the company was limited to the amount equal to the premiums which had been paid. The defendant paid to the clerk of the court the amount of the premiums paid, and the court ordered the same accepted by the clerk pending the final disposition of the cause.

The case was tried to the court without a jury. The court entered its judgment finding that the plaintiff was entitled to recover the $25,000 base limits of the policy, the $25,000 double indemnity benefits and the statutory 12 per cent penalty on the total or $6,000 and a reasonable attorney's fees which the court found to be $10,000. The court accordingly entered judgment in favor of the plaintiff for the amount of $66,000 together with interest thereon from date at the rate of 6 per cent per annum. From that judgment the defendant perfected this appeal. This appeal is presented upon three points of error contending there was no evidence that the insured, William Edison Watson, died as a result of external, violent and accidental means; the evidence conclusively established that the insured died by suicide and self-destruction, and because the evidence was not sufficient to establish that the insured died as a result of external, violent and accidental means.

In presenting her case to the court the plaintiff offered in evidence the insurance policy; death certificate showing Watson died from gunshot wounds; exhibits three through seven, both inclusively, showing pictures of Watson after being shot and then admissions that the death of Watson resulted solely from gunshot wound or wounds to his body on September 9, 1959 and that he died on that date. Plaintiff next offered the evidence of J. D. Miller who testified as to where the body was found and its position and where the gun was laying. Next plaintiff offered the evidence of J. O. Fitzjarrald, an attorney, as to what would be a reasonable attorney's fees for handling this suit. Then the plaintiff rested. The question up to this time is whether the plaintiff brought her cause within the rule requiring her to establish that the case was not one of suicide. The burden was on the plaintiff to prove that the deceased did not commit suicide in order to bring her claim within the terms of the policy. Rowley v. American Nat. Ins. Co., Tex.Civ.App., 124 S.W.2d 173; Woodmen of World Life Ins. Soc. v. Smauley, Tex.Civ.App., 153 S.W.2d 608. It is stated in the case of American Nat. Ins. Co. v. Fox, Tex.Civ.App., 184 S.W.2d 937, at 943 (Writ refused, W. M.) as follows:

'The burden was upon the plaintiff to make out a case, aided by such presumptions as are recognized by the law. There is no presumption that the insured voluntarily brought the danger upon himself. The presumption, based upon the recognized instinct of self-preservation, is to the contrary.'

It is stated in the case of Great American Life Ins. Co. v. Dearing, Tex.Civ.App., 193 S.W.2d 250, 253 (Writ refused, N. R. E.):

'[2, 3] Concededly by appellee, since she sued upon the the accidental benefit provision of the policy in suit (Section 15 thereof), as is well settled, she had the burden of establishing that the case was not one of suicide, which, as recited supra, she succeeded in doing to the satisfaction of both the trial court and the jury. This court holds, as against the position of the appellant, that she did at least produce enough evidence against the appellant's suicide theory as brought the determination of that question within the province of the jury.

' In the first place, it is also well settled, as appellant expressly concedes, that there is a very strong presumption in the law against the commission of suicide, in which, in an instance where one shoots himself, as the appellee's husband is conceded by both parties to have done, it is assumed that it was an accident rather than an intentional act; and further, even that the deceased was normal and without suicidal intent. Southland Life Ins. Co. v. Brown, Tex.Civ.App., 121 S.W.2d 653, error dismissed; Brockman v. J. Weingarten, Inc., Tex.Civ.App., 115 S.W.2d 753, affirmed 134 Tex. 451, 135 S.W.2d 698; 39 Tex.Jur. in footnote at page 853; Malley v. Union Indemnity Co., Tex.Com.App., 12 S.W.2d 1002.'

When the plaintiff rested we think she had introduced sufficient evidence coupled with the presumption to sustain her claim until proof to the contrary was introduced to show suicide. The presumption against suicide is a rule of law and not a rule of evidence and such presumption cannot stand when the evidence submitted establishes facts to the contrary. McClelland et al. v. Great Southern Life Ins. Co., Tex.Civ.App., 220 S.W.2d 515 (Writ refused, N. R. E.).

We are familiar with the rule as laid down in the case of Renfro Drug Co. et al. v. Lewis, 149 Tex. 507, 235 S.W.2d 609, 613, 23 A.L.R.2d 1114, by the Supreme Court where it is stated:

'[1, 2] No findings of facts or conclusions of law were requested of or filed by the trial judge. The trial court's judgment, therefore, implies all necessary fact findings in support of the judgment. In seeking to determine whether there is any evidence to support the judgment and the implied findings of facts incident thereto 'it is proper to consider only that evidence most favorable to the issue and to disregard entirely that which is opposed to it or contradictory in its nature.' Austin v. Cochran, Tex.Com.App., 2 S.W.2d 831, 832; Cartwright v. Canode, 106 Tex. 502, 171 S.W. 696.'

We must determine if there is sufficient evidence of a controverted fact in this case as to whether deceased committed suicide or not. The only disputed question is whether the shots were accidental or an act of intentional self-destruction. The plaintiff's evidence consists of the fact that Watson was killed by a gunshot and the evidence of several witnesses that they had known the deceased for several years and had not noticed any change in him and that he was a jovial person and so far as they knew he had no reason or motive to commit suicide. This testimony together with the presumption based upon the recognized instinct of self-preservation is sufficient to rebut any claim of suicide unless the evidence of the defendant shows the shooting was intentional. The judgment must stand, unless the evidence establishes that the shooting was intentional to that degree of conclusiveness which precludes a reasonable doubt to the contrary. United Fidelity Life Ins. Co. v. Adair, Tex.Civ.App., 29 S.W.2d 940, at page 944; Home Benefit Ass'n v. Buro, Tex.Civ.App., 10 S.W.2d 188.

The case of Empire Gas & Fuel Co. v. Muegge, 135 Tex. 520, 143 S.W.2d 763, 767, by Com. of App. opinion adopted by the Supreme Court states:

' The presumption is a true presumption, which has been defined as 'a rule of law laid down by the courts which attaches to facts certain procedural consequences'. McCormick & Ray's Texas Law of Evidence, Sec. 32, p. 48. It places on the party against whom it operates the burden or producing evidence. It is not evidence and when met be rebutting proof is not to be weighed by the jury or treated by the jury as evidence in arriving at a verdict. McCormick & Ray's Texas Law of Evidence, pp. 51, 58, Sections 34, 37; 20 Amer.Jur. pp. 170, 171, Sec. 166. (Underlining ours.)

'That such is the established rule in this state is settled by the authorities above cited, particularly Lewis v. J. P. Word Transfer Co. [Tex.Civ.App., 119 S.W.2d 106] and Houston News Co. v. Shavers [Tex.Civ.App., 64 S.W.2d 384]. In the Lewis case Associate Justice Looney quoted with approval a full and clear statement of the rule and its effect from the opinion of Associate Justice Alexander in the Shavers case. The approval by this court of the rule there stated, the substance of which has been given above, is evidenced by its refusal of applications for writs of error in both cases.'

Under the terms of the policy, the burden was on the beneficiary to allege and prove the necessary elements of accident in order to recover double indemnity and after that was done it was then up to the insurance company to prove that deceased came to his death as a result of suicide to...