Horn v. Cole, Administrator

• Decision Date: 15 December 1941
• Docket Number: 4-6532
• Citation: 156 S.W.2d 787,203 Ark. 361
• Parties: HORN v. COLE, ADMINISTRATOR
• Court: Arkansas Supreme Court

156 S.W.2d 787

203 Ark. 361

HORN v. COLE, ADMINISTRATOR

4-6532

Supreme Court of Arkansas

December 15, 1941

Appeal from Pulaski Chancery Court; Frank H. Dodge, Chancellor affirmed.

Decree affirmed.

Fred A Snodgress, for appellant.

Blake Downie and Thomas E. Downie, for appellee.

OPINION

GREENHAW, J.

Fred Horn, colored, was shot and killed by his wife, Sarah Horn in Saline county, Arkansas, on August 9, 1940. They had been married about two years. At the time of the marriage, each of them had children by previous marriages. The deceased was the fourth husband of Sarah Horn.

At the time of his death, the deceased was and had been for some time employed by Republic Mining & Manufacturing Company of Bauxite, Arkansas. On April 18, 1939, while so employed, a certificate of insurance in the sum of $ 1,000 under a group policy insuring the lives of the employees of this company was issued to Fred Horn by Lincoln National Life Insurance Company. Sarah Horn was designated as beneficiary in this certificate.

The insurance company filed a bill of interpleader in the Pulaski chancery court, admitting the execution and validity of the certificate of insurance, alleging that Sarah Horn, the beneficiary therein, and also George Cole, the administrator of the estate of Fred Horn, were claiming the proceeds of this insurance and demanding payment thereof. The bill of interpleader further alleged that the plaintiff stood ready to pay the same to whom due, and tendered with its complaint said sum of money, to be deposited in the registry of the court for the use and benefit of such of the defendants as should be adjudged entitled thereto.

The defendant administrator filed an answer, alleging that the beneficiary, Sarah Horn, had disqualified herself from receiving anything under the policy, for the reason that on August 9, 1940, she wrongfully and unlawfully killed the insured, and therefore asked that the entire proceeds of the policy be ordered paid to him as administrator of the estate. The defendant, Sarah Horn, filed an answer denying that she had disqualified herself from receiving the proceeds of the policy in question, and denied that she wrongfully and unlawfully killed the insured. She further stated that she was indicted and tried for the offense of killing her husband in the Saline circuit court, and was acquitted of said charge on September 10, 1940, and asked that the proceeds of the policy be paid to her as beneficiary.

The court released the insurance company from further liability in this matter, pursuant to the prayer in the bill of interpleader, and upon trial of the issues between the widow and administrator, found the issues in favor of the administrator. Among other things, the court found: "That on the 9th day of August, 1940, defendant, Sarah Horn, the beneficiary, did wrongfully and unlawfully kill her husband, Fred Horn, the insured.

"And the court . . . doth order, adjudge and decree that the entire proceeds of the life insurance policy now in the registry of this court be delivered into the hands of the defendant, George Cole, administrator of the estate of Fred Horn, deceased, and that defendant, Sarah Horn, shall take no part of the proceeds of said policy, either as beneficiary or as widow of Fred Horn."

From the findings and decree of the chancery court the appellant, Sarah Horn, has appealed to this court.

The killing in this case was admitted. The appellant contends that it was done in self-defense. The testimony showed that the killing occurred some time after midnight. Marie Walters, a colored girl, in company with the son of the appellant by a former marriage, came to the home of Fred and Sarah Horn on the night of the killing, and was there at the time Sarah came in that night. She testified that when the appellant came in she was angry, and said she had seen her husband out with her cousin, Clementine Blakes, and she (Sarah) took the rifle and "pranked" with it a while. When the appellant was asked by her son what she was going to do about it, she said she was going to quit Fred, and that she went and sat on the back door steps, and in about 20 minutes Fred came up, and the appellant then said: "Fred, you just go on back where you come from. You've been dog enough to be out with my first cousin; don't come in here." Fred said it was not true--"Surely I can come to my own house," and she told him not to come, and he said he would cut her __ __ neck off. He kept coming, and she shot him. Fred never got inside the gate, and was about 25 or 30 feet from the steps when he was shot. She had never heard of his striking Sarah, and had not heard of their having any quarrel that night.

Fred Horn, Jr., age 13, testified that he was at home the night his father was killed. He heard the appellant's son, Buster, say to her, "What are you going to do?" and she said, "I am going to kill Fred," and Buster then said, "Mamma, don't you kill that man," and she said, "I ain't going to kill him; I am going to quit him." He further testified that she took the rifle and sat on the door step. Presently he heard his father coming, and the appellant said, "Don't you come in this house," and his father said, "Oh, oh, woman," and she fired twice and then took the lamp and went out there to see if he was dead. He did not hear his father say he was going to cut her neck off. He also went out after his father was shot, and found him lying outside the fence. He had never known of his father and the appellant having a serious quarrel. C. C. Perron, camp manager for the Republic Mining & Manufacturing Company at Bauxite by whom the deceased was employed testified that on the night this happened he was notified that the appellant had killed Fred Horn, whereupon he went to the camp and talked to the appellant. She said: "Ikilled Fred. He was out with Clementine Blakes." She said she was sitting near the door as Fred came down the hill, and she told him not to come in. Fred said he had a right to and would cut her neck off, and she shot him. Perron further testified that he never heard of the deceased striking appellant, and that they did not have a fight that day. The deceased was a very good man, while the appellant was quick tempered and would fight, and she had been married four or five times. The appellant had not gotten along with her former husbands, and he knew of quarrels she had with former husbands. The body of the deceased was lying outside the fence, about 10 feet from the gate, when he arrived.

The appellant testified that she was the beneficiary of the policy of insurance on the life of the deceased. She was tried in the Saline circuit court and found not guilty of killing him. She was forced to shoot him in self-defense. She saw the deceased with her cousin when they came around the church house, but denied telling Mr. Perron that she shot him because he had been with her cousin. She further testified that she was not on the door step when the shooting occurred; that she was out there "tussling" with him over the gun.

These were the only witnesses who testified concerning the circumstances of the killing. Depositions of other witnesses were introduced with reference to the characters of the appellant and the deceased.

Attorney for appellant concedes that a beneficiary in an insurance policy who wrongfully kills the insured cannot recover on the contract of insurance. He also concedes that a judgment in a criminal prosecution is not admissible in a civil action as proof of any fact except the fact of its existence.

In the case of Washington National Insurance Company v. Clement, 192 Ark. 371, 91 S.W.2d 265, this court quoted with approval the following statements from Ruling Case Law and Corpus Juris:

"The general rule is that a judgment in a criminal prosecution is no bar to a...