Home Life Ins. Co. v. Miller, 47.

• Decision Date: 15 December 1930
• Docket Number: No. 47.,47.
• Citation: 182 Ark. 901,33 S.W.2d 1102
• Parties: HOME LIFE INS. CO. v. MILLER.
• Court: Arkansas Supreme Court

Page 1102

33 S.W.2d 1102

182 Ark. 901

HOME LIFE INS. CO. v. MILLER.

No. 47.

Supreme Court of Arkansas.

December 15, 1930.

Dissenting Opinion December 22, 1930.

Rehearing Denied January 26, 1931.

Appeal from Circuit Court, Lafayette County; Dexter Bush, Judge.

Suit by L. W. Miller, as administrator of the estate of John W. Miller, deceased, against the Home Life Insurance Company. Judgment for plaintiff, and defendant appeals.

Reversed and rendered.

Appellant insurance company issued and delivered on the 25th day of September, 1928, its insurance policy No. 48,728, insuring his life in the sum of $10,000, to John W. Miller, sheriff, payable to his executors, administrator, or assigns. The policy contained the following provision: "In case of suicide of the insured, whether sane or insane, within one year from the date of this policy, the liability of the company shall be limited to a sum equal to one-tenth of the face of this policy."

On the 3d day of September, 1929, John W. Miller was killed, and suit was brought by the administrator of his estate, appellee, to collect the insurance.

The appellant answered admitting the issuance and delivery of the policy to Miller as alleged, and that he died on the 3d day of September, 1929. Alleged that his death was due to self-inflicted wounds with suicidal intent, and that it was only bound to the payment, under the provisions of the policy, the insured having committed suicide, of the sum of $1,000, which it tendered to appellee and offered to pay into the registry of the court in settlement and satisfaction of all liability under the policy.

Appellee filed a reply in which he denied that the death of the insured was due to gunshot wounds self-inflicted with suicidal intent, and that the insurance company was liable only for $1,000 as claimed; and alleged its liability for the full amount of the policy.

The record shows that the deceased, John W. Miller, was sheriff of Lafayette county; that he was short in his accounts with the state for taxes collected in the sum of about $____; and that his dead body was found lying upon a bed in the sample room of a garage building on the alley about 40 feet from the rear of his home and a little east thereof about 6:30 or 7 o'clock on the morning of September 3, 1929.

The bed was in the northeast corner of the sample room, the body lying somewhat obliquely across it, the head to the north and a little east, the feet towards the south and crossed about the center of the bed. The body was clothed in an undershirt and a pair of blue serge trousers, and the shoes had been removed and placed side by side on the bed near the legs, between the knee and ankle on the east side of the body. There were two bullet or pistol shot wounds in the forehead, one in the center and the other to the right side of the frontal median line about one and one-half or two inches apart. Clutched in the right hand was a .32-caliber revolver lying across the stomach, with two empty shells in the cylinder. The pistol had formerly belonged to the deceased wife of Miller and had been in his home and used by him since her death. The room in the garage where the body was found on the bed had been used as a sample room and was separated from the garage by partition walls, in which near the bed was a door securely closed and fastened. There were three windows in the sample room, one on the east side, one on the west next to the residence, and one on the south end, all about 3 or 4 feet from the ground. A pistol shot was heard in the early morning about 6 to 6:30 of that day. Nora Lee, a daughter of Miller, and Miss Vaughan, a relative of the family, were both awakened in the residence by the sound. The daughter rushed to the rear porch of McClendon's home, a neighbor who lived about 100 feet from the Millers. On the rear porch she called repeatedly for William McClendon and Lay McClendon, Jr., hearing the distress call, rushed to the rear porch, and, while she was explaining the trouble to him, they heard a second shot fired from the direction of the sample room and immediately saw Miss Vaughan running from the sample room towards the house screaming and calling for Nora Lee. They saw her about 10 feet from the sample room when the second shot was fired and Nora Lee almost collapsed into a chair. Lay went to his bedroom for his shirt and told his father that something had happened up to the Miller house and ran immediately to the sample room. He made unsuccessful efforts to enter through the door on the east side and then went around into the garage and attempted to go through the door in the partition wall, which was so fastened that he could not get in. He then went back to the screen door on the west side facing the direction of the Miller residence and got in. He found the body of Miller upon the bed with the pistol grasped in his hand as already described. He then unfastened some of the windows and opened them because of the labored breathing of Miller, thinking he needed some fresh air.

Dr. Youmans was the first physician to reach the body. He made an examination and discovered the wounds as already said. The bullet inflicting the wound to the right did not penetrate the skull and was removed by him. The other crashed into the brain causing instant paralysis and immediate death. The bullet that did not penetrate the skull was fired first, and the doctor discovered a little spot of powder burn around the center wound. Both bullets were fired apparently straight in. The one that penetrated the skull showed that it was fired straight into the head.

There were no indications of any struggle in the room where the body was found. There were but two small spots of blood on the floor and some on the bed near the head, but the wound bled freely when the doctor raised the head. Two or three physicians examined the body, and all agreed that the shot into the brain would cause instant paralysis, and that probably the bullet that did not penetrate would have caused unconsciousness temporarily. One said, however, that, although the shock would have been great, it would not necessarily have caused unconsciousness.

Miller had retired in his room in the house, in which two or three of the children slept, on that evening and before the relative, who was visiting, had retired to her room down across the hall. One of the young ladies, his daughter, heard a noise during the night and thought it was her father calling the younger son, Miller, Jr. No one saw him leave the house and go into the sample room, and there was no evidence indicating that any one else had entered or left the room where the body was found before young McClendon entered it.

There was some testimony tending to show that the deceased for some little time before the shooting had been indifferent, depressed almost continually, blue, and gloomy. Although many of his friends did not regard him abnormal or his mind unsettled, some of them attributed this condition to the fact that he had been hurt in an automobile accident some month or two before the day of his death. There was some other testimony tending to show that he had made some arrangements for attending to certain official business immediately after the day of his death and the week following. He was engaged to be married, it was shown, to a lady in Shreveport, La., whom he frequently visited down there and who came to and visited in his home and who was present and remained in the office on the morning he was sworn in as sheriff.

He expected to be called on immediately for final settlement by the state for the taxes he had collected and was unable to pay. Two letters, unsigned, written by him to the Shreveport woman and inclosed in an envelope addressed to her, were procured from her at Shreveport by the claim agent of the company, who was accompanied by a former sheriff of an adjoining county who was personally acquainted with her. This envelope was not mailed, although addressed to her, and she came immediately to the residence of Miller upon the advice of his death, and attended his funeral there. The letters were shown by many people to have been in his handwriting. They expressed the great love of the writer for Miss Trussell, solicitude about his children, whom he hoped she would feel kindly towards and be helpful to, his regret that his shortage was to be exposed before the 20th or 25th of September, and an unmistakable intention to kill himself. Extracts from the letters are as follows:

"My darling sweetheart, you made me do the hardest thing tonight that I ever done when you made me tell you my troubles. * * *"

"Oh, my God, darling, Georgia acted just like it did not concern her at all. Darling she is my child and I love her, but, my God, how can she act that way, when her daddy's life is at stake. * * *"

"Nora Lee and all is asleep, no one woke up yet. Nora, poor thing, I guess she is wore out, God knows I love her for what she done today, and, will you, please, tell her for me. Well, doll, I left you for my last time tonight, and am telling you goodbye forever and ever more and sealing it with love and kisses."

                           "Monday Eve, September 2, 1929
                

"My only darling, it is hard to die and leave you and my darling babies, oh, God, how hard, no one will ever...