Life & Casualty Ins. Co. of Tennessee v. Andrews

• Decision Date: 06 February 1928
• Docket Number: 26797
• Citation: 115 So. 548,149 Miss. 306
• Parties: LIFE & CASUALTY INS. CO. OF TENNESSEE v. ANDREWS. [*]
• Court: Mississippi Supreme Court

115 So. 548

149 Miss. 306

LIFE & CASUALTY INS. CO. OF TENNESSEE v. ANDREWS. ^[*]

No. 26797

Supreme Court of Mississippi

February 6, 1928

Division B

Suggestion of Error Overruled March 5, 1928.

APPEAL from circuit court of Lowndes county. HON. J. I. STURDIVANT Judge.

Action by Grover Cleveland Andrews against the Life & Casualty Insurance Company of Tennessee. From a judgment for plaintiff, defendant appeals. Reversed and rendered.

Reversed.

Frierson & Weaver, for appellant.

The sole question was whether the deceased committed suicide. Supreme Lodge Knights of Honor v. Fletcher, 78 Miss. 377, 29 So. 523, controls and is in point. "We think the evidence of intentional self-murder, on the case shown by this record, overwhelming. The condition of the body, the wound, and the pistol in the hand would be enough." We respectfully urge that the foregoing decision and the facts on which it was based, applied to the facts in the instant case, leave us with the conclusion that insured committed suicide in the instant case. New York Life Ins. Co. v. Myers, 109 So. 30, sustains a finding of death by accident, but the facts and circumstances in the instant case can only admit a finding of suicide. A case in point is Webster v. New York Life Insurance Co., 160 La. 854, 107 So. 599. We will notice some of the Mississippi cases. See Sup. Lodge K. of P. v. Fletcher, 78 Miss. 379, 29 So. 523; Fletcher v. Sov. Camp W. O. W., 81 Miss. 249, 32 So. 923; Mass. Protective Ass'n v. Crawford, 137 Miss. 876, 102 So. 171; New York Life Ins. Co. v. Myers, 109 So. 30. We respectfully submit that the lower court, in view of the uncontradicted evidence in the case, the physical facts, and the note showing state of mind and motive should have granted the peremptory instruction to find for the defendant, and that the case should be reversed, and judgment here for defendant.

The rule of law is as hereinbefore stated, that the presumption is against suicide in an ordinary life policy or even in an accident policy. But the rule of law also in reference to an accident policy is that the burden of proof is on the beneficiary or claimant to prove that the death was by accident. See U. S. Casualty Company of New York v. Malone, 126 Miss. 73, 87 So. 896.

Lincoln & Lincoln, for appellee.

Counsel for appellant quote case of Knights of Honor v. Fletcher, 78 Miss. 379, 29 So. 523. This case is not a parallel case with case at bar. In the Fletcher case cited as above, there was every fact to show that deceased was contemplating suicide, but in case at bar, there is not one scintilla of circumstance to indicate that insured was tired of life and contemplated self-murder, yet counsel for appellant contend that the facts indicating suicide are stronger in the case before this court than the facts in the Fletcher case.

This court is familiar enough with the use of firearms, to know that to place a pistol to head of a person and fire the same and the ball to enter the head where it is described as entering the head of insured, that the arm cannot be extended far enough from the head to hold a pistol at a distance that when fired it will not powder burn the face and head. This is a physical fact which cannot be disputed, and is a fact which is overwhelmingly against any theory of suicide on the part of the insured. New York Life Insurance Co. v. Meyers, fits this case absolutely, 109 So. 530. The record in this case is short and we respectfully ask this Honorable Court to carefully peruse it. The jury in the court below heard all the evidence and rendered a verdict in favor of appellee in the sum of two thousand dollars, and we respectfully submit to this court that this case should be affirmed and the judgment as given by the jury in the court below stand.

Argued orally by Robin Weaver, for appellant, and B. A. Lincoln, for appellee.

OPINION

ANDERSON, J.

Appellee brought this action in the circuit court of Lowndes county against appellant to recover the sum of two thousand dollars on a casualty insurance policy issued by appellant to John V. Andrews, the son of appellee, in which policy appellee was named as beneficiary. There was a trial, and verdict and judgment for appellee, from which judgment appellant prosecutes this appeal.

On March 20, 1926, appellant issued and delivered to John V. Andrews a casualty policy naming his father, appellee, as the beneficiary therein. The principal sum named in the policy was one thousand dollars. The policy provided for the payment to the beneficiary double that amount in case of the accidental death of the insured. While the policy was in force, the insured died from a pistol shot wound. The policy contained the following clause:

"If within one year from the date of issue of this policy the insured shall, whether sane or insane, die by his own hand, the liability of the company shall be limited to the amount of the premiums paid hereon."

The insured died within three months after the policy was issued.

Appellant defended the action upon the alleged ground that the insured came to his death by suicide, and that, therefore, under the suicide clause of the policy, appellant was not liable to the beneficiary therein, except for the premiums paid on the policy, amounting to twelve dollars and eighty-three cents, which appellant tendered to appellee, which tender appellee declined.

The only error assigned and argued by appellant is that the court erred in refusing its request for a directed verdict. By agreement of the parties the evidence in the case was embodied in writing and made a part of the record for the purposes of this appeal. The evidence was brief. We think it probably better to set it out in full rather than undertake to state its substance. It follows, leaving off such formal parts as are deemed immaterial:

EVIDENCE ON BEHALF OF APPELLEE.

"Grover Cleveland Andrews, plaintiff in the said cause, who testified as witness for himself at the trial of the said cause as follows: That he is the father of John V. (or Vardaman) Andrews, and the beneficiary named in the policy No. 59079 in the Life & Casualty Insurance Company of Tennessee, which said policy is dated March 10, 1926, and provides for payment of one thousand dollars in case of death from natural causes within the terms of the policy and the payment of two thousand dollars in case of death by accident within the terms of the policy. The policy was further filed as an exhibit to the declaration and was introduced as exhibit to the testimony of said plaintiff. Affiant testified further that the said insured, John V. Andrews, was living on the place of and working with Mr. Arrington Johnson at the time of his death, and that on the morning of the death of the said insured, affiant and affiant's wife, the mother of insured, were called to the home of Mr. Arrington Johnson, and that the date of the death of the said insured was June 15, 1926. When they arrived there they found Dr. Chandler, John Brooks, and Arrington Johnson in the room and the body of deceased lying on the bed in the room with his clothing on, but the blood had been washed from the face of deceased and there was a bullet wound entering the right temple and coming out behind the left ear on the body of the said insured. Affiant had seen his son frequently during the preceding days and said son was cheerful and bright and in his normal state of mind. Affiant testified also on cross-examination that the note was given to himself and wife after she and affiant reached the scene of the death of the insured, and the affiant further testified that the said note did contain expressions stating in about the words, 'I am world weary,' and also that the note did contain the expression in the words or about the words, 'The only girl I ever loved has gone back on me.'

"Affiant did testify that the pistol was sent to affiant which was an automatic pistol. Affiant further testified that he did not know at the time he was giving this testimony at the trial where the said note was; that he and his wife had not preserved it and could not produce it; that he had offered it to the agent of the company before the trial for inspection, but the agent who called for it had gone and it was lost. No powder burns on the body of the deceased.

"Affiant further testified that the proper death proofs had been made and submitted to the defendant, the insurance company, and that payment of the claim of insurance had been declined, and also the insurance company had made and did then make in open court tender of the amount of the premiums, which amounted to twelve dollars and eighty-three cents, which had been paid on the policy, and that these premiums were declined and refused previously and also in open court at the time of the trial by affiant as the beneficiary under the said policy, and that the tender previously made and also at the trial of the case was made by the company on their claim that the death of the insured was by suicide and that the terms of the policy provided that in case of such death by suicide within a period of twelve months after the date of the policy, the company should be liable only for a refund of the premiums paid and the premiums were declined on this ground.

"Hazel Gilliam, witness for the plaintiff, testified as follows That she is of the age of seventeen years and lives in Lowndes county, Miss., and that Vardaman Andrews had been going with her and paying her attention for some time; that about six months prior to the time of his death he had proposed marriage to her and that she had stated that she was too young to marry and that he had said he would wait. Witness saw the said Vardaman Andrews on the morning of June 15th, before his death, as he was returning...