Jefferson Standard Life Ins. Co. v. Wigley

• Decision Date: 06 February 1947
• Docket Number: 6 Div. 493.
• Citation: 248 Ala. 676,29 So.2d 218
• Parties: JEFFERSON STANDARD LIFE INS. CO. v. WIGLEY.
• Court: Alabama Supreme Court

29 So.2d 218

248 Ala. 676

JEFFERSON STANDARD LIFE INS. CO. v. WIGLEY.

6 Div. 493.

Supreme Court of Alabama

February 6, 1947

Rehearing Denied March 6, 1947.

Hugh A. Locke and Wade H. Morton, both of Birmingham, for appellant.

Horace C. Wilkinson, of Birmingham, and Rains & Rains, of Gadsden, for appellee.

STAKELY, Justice.

This is a suit brought by Ida Leola Sterling Wigley (appellee) against Jefferson Standard Life Insurance Company (appellant) on a policy of life insurance in the principal sum of $2500. The policy was issued by appellant on September 15, 1939, on the life of Perry Braswell Wigley and is payable to Ida Leola Sterling Wigley, his wife, as beneficiary. The insured, Perry Braswell Wigley, died on August 30, 1940.

The defense in this case is death of the insured by suicide with no liability by reason of the following clause contained in the policy. 'In case of self-destruction committed whether sane or insane, within two full years from the date hereof, the extent of recovery hereunder shall be the premiums paid.'

Trial of the case resulted in a verdict and judgment for the plaintiff. In its oral charge the court charged, in effect that there is a presumption that a normal, sane person will not commit suicide. The defendant excepted to this portion of the court's oral charge and this presents the controlling question on this appeal. In the case of Fleetwood v Pacific Mut. Life Ins. Co., 246 Ala. 571, 21 So.2d 696 698, 159 A.L.R. 171, this court, after reviewing the Alabama authorities, said: 'That there are situations when the presumption is applicable and on the contrary, there are situations when the presumption has no field of operation.' From the Alabama authorities this court laid down the following rules: 'If there is direct and positive evidence of suicide and there is no conflicting inference from any evidence as to suicide, then the presumption against suicide has no field of operation. On the contrary, if there is direct and positive evidence of suicide and there is a conflicting inference from any evidence as to suicide, then the presumption against suicide has a field of operation. If the evidence is all circumstantial, then the presumption against suicide has a field of operation. We may add that inference means reasonable inference and not mere speculation or conjecture. * * *'

The foregoing decision is not questioned as an authority here. The appellant insists that under the evidence in this case the presumption against suicide has no field of operation. While on the contrary the appellee insists that the presumption against suicide has a field of operation and the court was correct in charging the jury upon the presumption against suicide. To solve the problem we must go to the evidence.

Perry Braswell Wigley, the insured, died August 30, 1940, as a result of gunfire. The shooting took place in Room 215, Printup Hotel, Gadsden, Alabama. This room was occupied by the insured and one Evelyn Mattox, his paramour. She also received a gunshot would from which she died.

The insured was at the time of his death and for sometime prior thereto engaged as a highway patrolman for the State of Alabama. About two months before his death he was transferred from Clanton, Alabama, to Gadsden, Alabama. His home was in Dawson, DeKalb County, Alabama. His wife and children continued to reside there while he was stationed elsewhere. While the insured was stationed at Clanton, Alabama, he began his affair with Evelyn Mattox. Captain Gilbert, the head of the State Highway Patrol, moved him from Clanton to Gadsden to get him away from this situation. Inspector Kelly Morgan was the insured's immediate superior officer at Gadsden. When the insured first came to Gadsden, Kelly Morgan told him 'not to bring her up there, not to let her come up there,' to which the insured said, 'He wasn't going to let her come up there.'

About a week before the shooting the insured and Evelyn Mattox registered at the Printup Hotel as Mr. and Mrs. Wigley. Kelly Morgan saw Wigley and Evelyn Mattox leave a picture show together on August 28, 1940. This was reported to Captain Gilbert and the insured was told that Captain Gilbert would be in Gadsden to hear a report on this matter on August 30th, which was the day following the night on which the insured was shot. Upon being advised by Kelly Morgan that Captain Gilbert would be there to hear a report on this matter, the insured said: 'I told her not to come up there.'

The circumstances surrounding the shooting were related by the witness Tom Powers, Manager of the Printup Hotel, as follows:

'The shooting took place between 9 and 10 o'clock on the night of August 29, 1940. I first heard about the shooting as I drove up to the side entrance of the hotel on Locust Street.

'I drove up to the side door. My negro watchman ran out. He says, 'Hurry, Mr. Powers! There's a shooting going on up-stairs!' So I ran in, caught the elevator, the second floor. Just as * * * the girl opened the elevator door, as shot went off. It takes about a second or two to open the door. In the meantime, I looked out, and this young lady, Evelyn Mattox, registered as Mrs. Wigley, was laying over on the settee, in front of the elevator, shot through the mouth. I walked around the room. Mr. Wigley was lying along side the bed. I pulled the door to, didn't go in the room, and the ambulance got the young lady away, and by that time, the police was there, and I went in the room with them. The gun way laying by the side of his hand.'

Wigley was shot through the head. The sound of the shot came from the direction of the room Wigley and the woman were occupying. Powers did not go in the room at first. He testified: 'I opened the door, saw him laying there. I saw the girl was out there, crying and hollering * * * The girl was on the settee in front of the elevator when the second shot was fired, a distance of 60 to 70 feet. She was shot through the mouth and died a few days later. Wigley died during the night.'

According to Powers when he went to the room, Wigley was lying on his back on the floor with a pistol wound through the front of his forechead. His head was in a pool of blood. The pistol which had been issued to him by the state was lying about three inches from his right hand. No one was in the room except Wigley. There was blood on the bed, also some teeth and a bullet. Powers further testified: 'I got off the elevator and went right straight to this room. I ran back down the steps and the ambulance came there, and put her in it, took her to the hospital; and they put him in another ambulance.'

The defendant introduced a photograph made of the insured after his death. The photograph was made under the supervision of H. W. Nixon, State Toxicologist, who went to Gadsden to investigate the shooting. This original photograph is before the court and appears to show two wounds in the forehead of the deceased, one in the center of the forehead about halfway between the line of the eyebrows and the bottom line of the hair of the head and the other wound just below the hairline. Both wounds are in line with the nose. The witness Nixon testified that he probed both wounds, that the wound in the center of the forehead went through the skull and entered the cranial cavity, but that the wound near the hairline did not go through the skull and did not enter the cranial cavity. He further testified that while it does not show on the photograph, by probing he found a furrow underneath the skin from the wound in the center of the forehead to the wound near the hairline. He testified that part of a lead bullet with fresh blood spattered on it was found slightly imbedded in the ceiling over the bed in the bedroom. He further testified that lead is a soft metal, that 'in the boney structure of the head, the frontal part is very tough and a hot bullet fired from a gun may spatter when it hits that hard surface and I have seen it in other instances. I have seen bullets spatter on being fired.' He further testified that there were no powder burns on the deceased and that ordinary washing by soap and water will not remove powder burns and that he saw the deceased after his face had been cleaned up by the undertaker. He further testified that if the pistol was held at contact with the head there would be no powder burns because the grease or stain from the bullet and from the pistol would pass inside the hole made by the bullet, but if the pistol was not held in contact with the head there would be powder burns, provided the pistol was not more than about 14 inches from the head.

The defendant introduced in evidence a copy of a death certificate certified by the Bureau of Vital Statistics showing that the death of Perry Braswell Wigley was the result of suicide. We shall later refer to this certificate at greater length. In the case of Fleetwood v. Pacific Mutual Life Ins. Co., supra, this court held that the death certificate constitutes direct and positive evidence of suicide and will prevail over the presumption against suicide unless the plaintiff goes forward with the case and introduces rebuttal evidence admitting of reasonable conflicting inferences against suicide. The problem, accordingly, in this case is to determine whether the plaintiff successfully met this burden. It is insisted by the appellee that this burden was met by proof of two bullet holes in the forehead of the deceased. With this we agree, if both wounds penetrated the skull, because it does not appear reasonable that a man could shoot himself twice where both bullets penetrated the brain. After the first shot it does not seem that he could make the second shot. Certainly the jury would have a right so to infer. If two bullets penetrated...