Holloway v. Bankers Life Co.

• Citation: 81 N.W.2d 453,248 Iowa 517
• Decision Date: 05 March 1957
• Docket Number: No. 49043,49043
• Parties: Crystal K. HOLLOWAY, Appellee, v. BANKERS LIFE COMPANY, Appellant.
• Court: United States State Supreme Court of Iowa

Page 453

81 N.W.2d 453

248 Iowa 517

Crystal K. HOLLOWAY, Appellee, v. BANKERS LIFE COMPANY, Appellant.

No. 49043.

Supreme Court of Iowa.

March 5, 1957.

Herrick, Langdon & Sidney, Des Moines, for appellant.

Theodore T. Duffield and James A. Lorentzen, Des Moines, for appellee.

BLISS, Chief Justice.

The insurance policy, issued October 16, 1954, provided that the insurer, immediately on receipt of due proof of the death of the insured, while the policy was in full force, would pay to the beneficiary $5,000. The insured elected to pay the annual premium of $138.05 in quarter-annual payments of $36.25. He had paid the first of these installments, which would have maintained the policy in force to January 16, 1955. His death occurred on December 4, 1954. The policy was not issued on the solicitation of the insured. The moving party in the sale of the policy was an insurance salesman of the appellant, who contacted the insured upon learning that he had purchased a new home. The salesman called the insured by telephone on October 5, 1954, for an appointment on October 10th. The insured did not purchase a policy at that time, but final arrangements were made on October 13, 1954, and the first quarter payment of the premium was made when the policy was delivered to the insured.

The insurer having denied any liability under the policy on January 13, 1955, the beneficiary filed her petition on January 17, 1955. The policy provided that if the insured died prior to October 16, 1975 the insurer would pay a monthly income of $50 to the beneficiary up to that date and at that time pay a final sum of $5,000. This was the ordinary life portion of the policy and under it plaintiff claimed $200 for four monthly payments of $50 each. The policy also provided that if the insured's death resulted, directly and independently of all other causes, from bodily injury effected solely through external, violent and accidental means, the insurer would pay an additional amount of $5,000. With reference to this additional $5,000, the policy provided that: 'The additional amount provided for above will not be paid if the insured shall die as a direct or indirect result of one or more of the following, which are risks not assumed: Suicide, whether sane or insane; * * *.'

The general provisions of the policy provided: 'Suicide: If the insured shall die by suicide, while sane or insane, within two years from the date of issue hereof, the amount payable to the beneficiary under this policy shall be the sum actually received by the Company for premium payments hereon without interest, and no more.'

Plaintiff alleged that the death of the insured was accidental. Defendant by answer admitted the issuance of the policy, but denied that the death of the insured was accidental, and for a separate defense to that portion of the claim based on the ordinary life portion of the policy, pleaded that the insured died by suicide, and further denied all further liability to the plaintiff, except for the obligation to return the premium.

As stated by appellant, the questions presented on the appeal include: whether or not the Court erred in overruling motions of defendant for a directed verdict, whether or not the Court erred in rulings on evidence, and whether or not the Court erred in certain instructions to the jury.

The insured was born at Lamoni, Iowa, August 21, 1925. He was about five feet and nine inches in height, weighed about 145 pounds, and was right-handed. After his marriage to plaintiff on January 21, 1946, and thereafter, for nine months he attended Graceland College in Iowa. The couple then moved to Yakima, Wash., where he remained for five years in the employ of the Standard Oil Co., when he returned to Des Moines, Iowa, as a salesman for Standard Oil Co. In January, 1954, he became the operator of the station of that company at 4108 Fleur Drive in Des Moines. After living in rented properties for some time the couple bought a home at 6115 Boston located in northwest Des Moines, a few blocks west of Merle Hay Road. The purchase was made about three or four months before Mr. Holloway's death. Two daughters were born of the marriage, Kathy and Nancy, respectively about eight and four years old at the time of his death.

He and the plaintiff were reared at Lamoni, Iowa, and attended grade and high school together. He came from a good family, and was the youngest of six children. He was an athletic young man and participated in all school activities and outdoor sports. In his senior year in high school he won an award for outstanding athletics. He was a good student, well liked, and in turn liked everyone. His father was still an active minister at the age of 78 years, at the son's death.

The insured went into the U. S. Navy after graduating from high school and served overseas around Manus Island. He was a strong, able-bodied man, and always enjoyed good health. He was of a very pleasant, congenial, friendly nature and disposition, liked by all who contacted him, and never showed any indication of worry, despondency or discontent. This was true at all times up to the time of his death. Many witnesses so testified. In fact there was no evidence to the contrary. We give some excerpts of testimony respecting his uniformly happy nature and conduct, which are typical of all the testimony. Robert Welty, a salesman from Winterset, first met Mr. Holloway a year and a half previous to his testifying, and stopped frequently at his station because he liked him. One of these occasions was at 7:00 P.M. December 3, 1954, the evening before his death. The insured was feeling happy over the business he was doing. Asked as to his general disposition, the witness said: 'He was a pretty happy sort of a fellow. I think everybody liked him. He seemed to get along with everybody pretty well. I believe he got a kick out of life, I really do.' William Bemis had patronized the insured since July, 1954, and stayed at his station from 7:30 P.M. to 9:00 P.M. on December 3, 1954, having his car washed and greased. He testified that 'he liked Holloway very much, he had a pleasing personality, always had something to say, had a splendid disposition and didn't appear that night any different than on other occasions, and made arrangements that night to pick up his car (the witness) the following morning at 8 or 9 o'clock.'

Another witness testified that he passed the insured's station between 11:30 and 12:00 o'clock on the night of December 3, 1954, and as was his custom he honked his horn when Bob was out there, and 'he acknowledged my horn with a wave and a smile.'

The insured and the plaintiff arose at about 7:30 A.M. on the morning of December 3, 1954. One of them took the daughter, Kathy, to school. Later they went to a garage to get the car which was there for repairs. He then went to his station and his wife saw him there about noon, and then never saw him again until about I o'clock that night at her mother's restaurant where she was helping. He did not appear worried or depressed and didn't mention anything bothering him. Throughout the day and night of Friday, December 3, 1954, and prior to the time he met his wife at the restaurant, Mr. Holloway operated his station and contacted many customers, twelve of whom testified that he was just as cheerful that day as he had been previously. As one stated: 'he seemed to be that way all of the time, just his nature.' Another said: 'He was always sort of smiling, that is the one thing I noticed * * * he had a pleasing personality.' The witness, Seery, said Holloway stopped that afternoon to collect an account, and that he was a 'happy-go-lucky type of guy and on the 3rd of December appeared as usual.' An attendant at the station testified that 'he was around Bob all of the time, that he was friendly, talkative, a good mixer and always had appeared to be happy, and on the 3rd day of December he didn't mention anything as bothering him and was his usual good natured self.' A witness to whom Holloway, after servicing a car, delivered it about 4 P.M. on Friday, stated that he appeared unworried as usual, 'a very jolly fellow who always had some little kidding remark to make, and didn't seem serious about anything.' William Emerson, who often hunted with Holloway, testified that the latter talked to him between 6:30 and 8:30, the evening of December 3, 1954, and asked him to go duck hunting with him the next morning, which invitation the witness could not accept. Of Holloway's attitude on this occasion, the witness said: 'He didn't disclose any worries, and that he was an awfully happy-go-lucky kid, and mixed well with people and seemed to enjoy life awfully well.'

There was testimony that there was a mutually loving attachment between Mr. Holloway and his children.

Officers Devine and Thiel of the Des Moines Police Department were in the restaurant of the mother of Mrs. Holloway when the insured came in for his wife between one and two o'clock in the morning of December 4, 1954. Both officers observed the insured talking with his wife and testified that he did not appear to be depressed nor worried, and they noticed nothing unusual about his actions nor any quarreling between the couple. Mr. and Mrs. Holloway left the restaurant in separate cars. Mr. Holloway arrived at their home about five minutes before his wife. The children were asleep in their bedroom. Sharon McKinney, a 15-year-old girl, was sitting with the children. She had not met Mr. Holloway before. He announced himself to her as 'one of the family', and asked her how much he owed her and when she told him it was $3 he gave her a five-dollar bill and said she could pay him the change the next time she came.

In a letter to Mrs. Holloway, postmarked December 18, 1954, Miss McKinney enclosed two dollars.

The Holloway one-story home at 6115 Boston was on the north side of the eastwest street which it faced. The front entrance to the home was...