Lewis v. N.Y. Life Ins. Co., 8235.

Citation113 Mont. 151
Case DateApril 13, 1942
CourtUnited States State Supreme Court of Montana

113 Mont. 151


No. 8235.

Supreme Court of Montana.

March 18, 1942.
As Amended on Denial of Rehearing April 13, 1942.

Appeal from District Court, Third District, Deer Lodge County; R. E. McHugh, Judge.

Action by Lura K. Lewis, as administratrix of the estate of Henry M. Lewis, deceased, and another, against the New York Life Insurance Company, to recover on a life insurance policy. Judgment for the plaintiffs, and the defendant appeals.

Judgment affirmed.

MORRIS, J., dissenting.

W. D. Kyle and Poore & Poore, all of Butte, for appellant.

L. C. Myers, of Butte, Eugene H. Mahoney, of Anaconda, W. W. Mercer, of Roundup, and T. J. Davis, of Butte, for respondents.

ERICKSON, Justice.

On March 22, 1938, the defendant insurance company delivered to Glenn W. Lewis its policy of insurance whereby it agreed to pay Henry M. and Lura K. Lewis, the parents of the assured, $3,000 upon receipt of due proof of the death of Glenn W. Lewis, or $6,000 if such death resulted directly and independently of all other causes from bodily injury effected solely through external, violent and accidental means, “provided however that such double indemnity benefits shall not be payable if the insured's death resulted directly or indirectly from self-destruction, whether sane or insane ***.” The policy further provides that “in the event of self-destruction during the first two insurance years, whether the insured be sane or insane, the insurance under this policy shall be a sum equal to the premiums hereon which have been paid to and received by the company and no more.”

The insured died on May 8, 1939, in Anaconda as a result of a gun shot wound, and plaintiff alleges that his “death resulted directly and independently of all other causes from bodily injury effected solely through external, violent and accidental means.” In its answer the defendant admits that the death resulted directly and independently of all other causes from bodily injury effected solely through external and violent means, but not by accidental means; and further denies that the death was occasioned by the accidental discharge of a gun or by any accidental means. Defendant then sets up the provision of the insurance contract heretofore set out relative to self-destruction and affirmatively alleges that the insured's death occurred as a result of self-destruction by means of a gun shot wound not inflicted by accidental means. The defendant then alleges that $128.12 was paid by the way of premiums on the policy and that that amount had been deposited with the clerk of the district court and it prays that plaintiff take judgment for that sum and no more.

Subsequent to the commencement of the action, Henry M. Lewis died and the plaintiff Lura K. Lewis sues not only on her own behalf but also as administratrix of the estate of Henry M. Lewis, deceased.

The pleadings present the sole question of whether or not the insured died as a result of accidental means. Trial was had before the Honorable R. E. McHugh, judge of the third judicial district for the county of Deer Lodge, sitting with a jury. At the close of all the evidence, defendant moved the court to direct the jury to return its verdict in favor of the plaintiff and against defendant for the sum of $128.12 and no more. The motion was denied and the jury returned a verdict in favor of the plaintiff in the sum of $6,000, plus interest, and judgment was entered thereon. A motion for a new trial was made and denied. This appeal followed.

Defendant specifies many errors. The first two go to the question of the sufficiency of the evidence to justify or sustain the verdict. The evidence adduced on both sides is all circumstantial. Briefly summarized, the facts which clearly appear and which are not in dispute are that on the morning in question the insured arose at an early hour compared with his usual time of rising; that after he had eaten his breakfast he returned to his room; that shortly thereafter the landlady heard a thud in his room and that when she investigated the noise she found the body of insured lying on the floor. Various officers were called and their investigation showed that the insured had a bullet wound in his forehead about midway between the median line of the forehead and the center of the right eye and from one-eighth to one-quarter of an inch above the right brow. The bullet entered the head approximately in a straight line toward the back and made a slight bump on the back of the head slightly above the level of the entrance of the wound on the forehead. There were powder burns on the forehead above the wound and an area of dark discoloration about the size of a quarter which appeared to be smoke or grease from the combustion. Lying on the floor several inches from the insured's right hand was a 38-caliber Smith and Wesson hammerless revolver. On a small table near the body the officers found a revolver cleaning brush and an open bottle of Hoppe's Gun Oil, a fluid ordinarily used for cleaning fire arms. But one shell was found in the chamber of the gun and it had been fired. The shell case was intermingled with others subsequently and it was not produced at the trial.

The greater share of the testimony introduced on behalf of the parties to the action concerned, first of all, the presence or absence of a motive for suicide on the part of the insured. The plaintiff's testimony tending to support the theory of accidental death in substance was that the insured was a young man with a promising future; that he was employed as the manager of one of the local theatres at a good wage; that he had had no difficulties in his work and his employer testified that he was secure in his position. The testimony is that he had no financial worries; that he was a young man of very cheerful nature and with a pleasing personality; that he planned to be married shortly and there was a great deal in the record to show that he had many plans for the immediate future.

His roommate testified that there was nothing unusual in the insured's conduct on the morning in question. All of the testimony adduced on behalf of the plaintiff negatives very strongly any motive for self-destruction.

On the defendant's part, testimony was introduced to show that the insured's father was in ill health, and that that situation very much affected the insured; and that there was considerable talk on the part of the insured to the effect that he would be required to give up his position at the theatre and go to Roundup, Montana, to look after his father's business affairs. However, there is evidence to show that his job at the theatre would be awaiting him on his return, should he carry out this plan.

The witness Mrs. Kurtz, the keeper of the boarding house at which the insured resided, testified at some length that the insured had for some time prior to his death been depressed, nervous and in general “not himself.” She testified that his father's ill health worried the insured a great deal. She gave testimony that after a telephone conversation which she took to be with his fiancee the insured had told her that he did not know whether he loved the girl or not. She testified that during the time shortly before his death the insured, without seeming cause, cried frequently. She further testified that on the morning of his death instead of arising at eleven, his usual hour, he arose some time between six and seven o'clock; that although he groomed himself meticulously in the morning, as was his custom, when he came down to breakfast he seemed very depressed and failed to eat the usual breakfast served but asked her to prepare bacon and eggs, etc.; that he ate a very large breakfast and drank a great deal of coffee, and that he smoked a great many cigarettes during the course of the breakfast.

The rest of the testimony was largely that of experts who were questioned very thoroughly by counsel for both parties as to whether or not the gun found in the insured's room could be accidentally discharged, it apparently being conceded that the wound was inflicted by that gun. A number of test rounds were fired from the gun. The purpose of most of this test firing was to demonstrate at what distance the gun was from the insured's forehead at the time it was fired. Concerning the various patterns made at various distances in the test firing of the gun at paper targets and the appearance of the bullet marks, etc., around the wound on the insured's forehead, the coroner testified that in his opinion the muzzle of the gun was some thirteen inches from the insured's forehead at the time it was discharged. Testimony was introduced on behalf of the defendant that cast doubt on the reliability of that estimate by reason of the possible difference between the cartridges fired in the test rounds and the cartridge fired in the gun in question, and also as to the effect of firing against paper as compared with flesh, so far as the pattern of the powder marks is concerned.

The expert who testified on behalf of the plaintiff stated on direct and cross-examination, and also upon rebuttal, that in his opinion the gun in question could be accidentally discharged in a number of ways. The expert witness on behalf of the defendant, on the other hand, testified at great length that by reason of the fact that the gun in question had no hammer, that it had a safety device which must be pressed at the same time as the trigger in order to discharge the gun, that the trigger-pull was some thirteen pounds, and by reason of other safety features the gun in question could not accidently be discharged. He stated that the gun could not be discharged by dropping it.

The witness for the plaintiff testified that it frequently happened that the trigger on a gun was pulled when the one doing so was under the impression that it was not loaded, and as result thereof the gun was accidentally discharged.

Errors are specified by the defendant touching the...

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