Kan. Life Ins. Co. v. Pearson

• Decision Date: 23 April 1935
• Docket Number: Case Number: 23456
• Citation: Kan. Life Ins. Co. v. Pearson, 1935 OK 462, 46 P.2d 449, 173 Okla. 259 (Okla. 1935)
• Court: Oklahoma Supreme Court
• Parties: KANSAS LIFE INSURANCE CO. v. PEARSON

1935 OK 462

46 P.2d 449

173 Okla. 259

KANSAS LIFE INSURANCE CO. v. PEARSON

Case Number: 23456

Supreme Court of Oklahoma

Decided: April 23, 1935

Syllabus

¶0 1. INSURANCE - Action on Life Policy - Suicide Never Presumed.

Upon an issue of suicide, self-destruction is never presumed.

2. SAME - Burden of Proof Upon Defendant.

In an action upon a life insurance policy, where the defense is the suicide of the insured, the burden of establishing self-destruction by a preponderance of the evidence is upon the insurer.

3. TRIAL - Legal Sufficiency of Evidence for Determination of Jury.

Where the minds of reasonable men may differ as to the legal sufficiency of the evidence, the jury, and not the court, must determine the issue.

4. APPEAL AND ERROR - Trial - Preponderance of Evidence for Determination of Jury.

In a civil action, it is for the jury to determine from all the facts and circumstances in evidence as to where the preponderance lies; and the Supreme Court on appeal will not substitute its judgment for that of the jury.

Appeal from District Court, Oklahoma County; Wyley Jones, Judge.

Action by Anna L. Pearson against the Kansas Life Insurance Company. Judgment for plaintiff, and defendant appeals. Affirmed.

McPherren & Maurer, for plaintiff in error.

Ledbetter, Stuart, Bell & Ledbetter, for defendant in error.

PER CURIAM.

¶1 This was an action on a life insurance policy issued March 9, 1925, on the life of J. Ed. Pearson. Anna L. Pearson, his widow, as the beneficiary therein, recovered a judgment on a verdict of nine men. The defense was suicide, the policy providing that in case of suicide within one year the amount payable should be only the premium collected. The case was tried before the Honorable Wyley Jones, who received the verdict and ordered judgment entered thereon. Upon the death of said trial judge before motion for a new trial was dis-posed of, the Honorable R.P. Hill succeeded him, and, after reading the complete record, overruled said motion. We shall refer to the parties as originally designated in the trial court.

¶2 There is little, if any, dispute in the record as to the material facts. In the briefs, however, there are some sharp conflicts on what we deem material matters. After a careful perusal and recheck of the record, we believe the following to be a fair statement of the material facts as disclosed by the witnesses:

¶3 The plaintiff and her husband lived in Crescent, Okla., at the time of his death, which occurred on July 5, 1929. They had been in the restaurant business in Oklahoma City, which venture had not been profitably, and the deceased had at times become very much discouraged and despondent, remarking that he could not make it and might as well end it all. However, he would become normal and appear to be in good spirits shortly thereafter, and in so far as the record shows had made no attempt to end his life prior to July 5, 1929. Some little time before his death they had gone out of the restaurant business and were living with the plaintiff's mother, and the deceased was trying to get some work at his trade of brick and carpenter contracting. It appears that he habitually hauled his tools, worth about $150 to $200, around in the back end of his Ford coupe and such tools were in the car on July 4, 1929, when there was a family gathering at their home, it being also plaintiff's birthday. The deceased seemed normal, mentally and physically. He had some money, probably $60 or more, in bills, and gave the plaintiff $10 for a birthday present. He was carrying his Howard watch in his shirt pocket on a chain. The party broke up about 8 p. m., and he remained at home that night and nothing occurred out of the ordinary, and he appeared normal.

¶4 The next morning, about 7 o'clock, the deceased left Crescent to go to Marshall, a distance of 16 miles north and west of Crescent, to see about a job of work, which trip he had mentioned the previous day. He stopped at a filling station in Crescent for gasoline and seemed in a normal condition. This was the last time he was seen alive by any witness in the case. At about 3 p. m. he was found dead in his automobile about 1 1/2 miles east of Crescent. The body was under the steering wheel, slumped over, head back, legs apart, blood on his head, face, and shoulders and an the cushion from wounds on the right side of his head. The car was headed west and was parked on the south or left-hand side of the road to the east of a cottonwood tree and partly in the shade thereof. He had evidently been dead about three hours, and there is a dispute in the testimony as to whether or not the car would have been in the shade of the tree three hours before the body was discovered. The doors of the car were closed, but the windows were down, that is, open. A 32-caliber Colt's automatic pistol was found in the car, some witnesses testifying that it was on the floor between his feet and others claiming that it was on the cushion between his legs. One hand was on the steering wheel and the other on his leg, the witnesses being about evenly divided as to which hand was on the wheel and which hand was in his lap. On the floor of the car was found one or two exploded shells of the same size and type as the pistol; and there is some reference in the record to another shell picked up in the highway by some one.

¶5 There appeared to be two wounds on the right side of his head in the temporal region, one referred to as a scalp or glancing wound and the other a penetrating wound, which when probed revealed the presence of a bullet at the base of the brain on the left-hand side. There were no powder burns on his face or head.

¶6 The undertaker testified that there were three wounds, a glancing wound and two penetrating wounds, the latter being close together and separated by a piece of scalp or flesh, the total size of the hole being larger than a penny; that he probed the wounds and there was one hole entering the head, but after inserting the probe, he could probe two ways, and both holes led into the brain; that it looked to him as if more than one bullet entered the head. However, he seems to have located but one bullet and it was not removed. Medical testimony was to the effect that there was only a scalp wound and one penetrating wound, a probe locating the bullet; but that the opening on the temple was large; that the penetrating wound would cause instant death and that the glancing wound might have rendered the deceased unconscious or stunned him, and if he were so stunned he would not be able to fire a second shot. There was testimony also that at close range a bullet would make a hole almost its exact size, and if a pistol were discharged reasonably close it would leave powder burns. There was evidence also explaining the operation of an automatic pistol and how it ejects each empty shell to the right a distance of one or two feet when fired. There was a bullet hole through the top of the car in front of the left rear corner, the point of entrance being on the inside just above deceased's head. One witness testified the hole was larger than a 32-caliber bullet. There was no testimony whatever as to the ownership of the pistol or that the deceased owned or ever carried one with him, or as to the pistol's condition when found as to having been recently fired or as to the number or kind (metal patched or soft nose) of cartridges, if any, in the magazine, or the position of the safety lever thereon or whether the deceased was right-handed or left-handed.

¶7 An examination of the ground surrounding the car disclosed some fresh tracks leading across the road to the north into the dry grass. There were tracks also some ten or fifteen steps from the car to the south. There were also some tracks south and east of the car leading back northwest toward the car.

¶8 When the body was searched there was no watch and no money excepting a few cents found. Neither were the tools in the car. A checkbook was in a rear pocket of the trousers. On the back of one blank check was written the following:

"I am going but God only knows You will get some insurance you should get it all if you get a good lawyer I am just tired of living my stomach is so bad Get the cheapest coffin you can get I am absolutely broke You are the best woman in the world Get Mr. Keck to help you. Ed"

¶9 - and on the printed side of the same check was the following:

"Keep every dollar you have, Oh may the Lord bless you, I have done wrong but only one way, that is to gamble in oil and drink, forgive me honey.

"Ed"

¶10 On the back of another check appeared the following:

"Honey

"Notify Parot Motor Co to get car but dont pay any more on it.

"Ed

"Get Mr. Keck help you on insurance and dont pay any of my accts for you will have only a few dols left

"Love Ed"

¶11 - and on a third check was the following:

"Grairson & Fink of the Edmond National Bank beat me out of $1800.00 Eighteen Hundred on deposit I swear this to be a fact

"J.E. Pearson."

¶12 Another note was later found by the plaintiff in his work clothes. It read as follows:

"Honey I have been trying to save myself but only you bless you. There will be some insurance get the cheapest coffin you can get My dues have lapsed in the Oddfellows but I think they will bury me"

¶13 According to her testimony he bad not worn these work clothes for about three weeks. All of these notes were in pencil, undated and in the handwriting of the deceased. The record is silent as to his having a lead pencil on his person.

¶14 The defendant tendered the amount of the premium paid, which tender was refused. A directed verdict for the defendant was refused. The verdict and judgment was for $5,000, the full amount of the policy, and the defendant appeals.

¶15 Considering first the instructions, the defendant complains particularly of three of them, Nos. 4, 5, and 6, viz.:

"You are instructed that the love of life is presumed, and that no man will intentionally take his own life, and that

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