McClelland v. Great Southern Life Ins. Co., 4594.

• Decision Date: 07 April 1949
• Docket Number: No. 4594.,4594.
• Citation: 220 S.W.2d 515
• Parties: McCLELLAND et al. v. GREAT SOUTHERN LIFE INS. CO.
• Court: Texas Court of Appeals

220 S.W.2d 515

McCLELLAND et al. v. GREAT SOUTHERN LIFE INS. CO.

No. 4594.

Court of Civil Appeals of Texas. Beaumont.

April 7, 1949.

Rehearing Denied May 18, 1949.

Appeal from District Court, Liberty County; Clyde E. Smith, Judge.

Suit on a life policy by Bidwell C. McClelland, and others, against Great Southern Life Insurance Company. From an adverse judgment, plaintiffs appeal.

Judgment affirmed.

Jeff Cochran, Cleveland, James E. Faulkner, Coldspring, for appellants.

Vinson, Elkins, Weems & Francis, of Houston, for appellee.

R. L. MURRAY, Justice.

This is a suit upon a life insurance policy in the principal sum of $10,000, issued by appellee Great Southern Life Insurance Company upon the life of Arzo Oliver Mull, a resident of Cleveland, Liberty County, Texas. Suit was brought in the district court of Liberty County by the appellants, Bidwell C. McClelland, et al, who were beneficiaries in the policy. The appellees and Mr. Mull, the deceased, were partners in the local business known as Home Building Supply Company. They sued for the principal sum of the policy, $10,000, plus 12 per cent statutory penalty and attorney's fees of $3,800, making a total amount of $15,000 sought. The appellee by its pleadings in answer to the suit admitted the issuance and delivery of the policy, payment of premiums, the designation of the appellants as beneficiaries, the death of the insured on December 4, 1947, within two years after the issuance and delivery of the policy, and further pleaded that clause of the policy called "the suicide clause", which read as follows:

"In case of the death of the insured by his own hand while sane or insane within two years from the date of the policy, the company's liability shall be limited to the amount of the premiums paid hereon." Appellee also pleaded that "the death of the insured resulted by his own hand and that his death was occasioned by his own hand". The appellee pleaded tender of the amount of the premiums paid, and the refusal of appellants to accept such tender, and made further tender in its pleadings of such amounts.

The case was tried to a jury and at the conclusion of the evidence, the trial court, on motion of appellee, withdrew the case from the jury and rendered judgment in favor of appellee, except as to the admitted liability of appellee for the amount of the premiums paid, for which judgment was rendered for appellants. Appellants have duly perfected their appeal to this court for review of the judgment.

A large amount of testimony was heard upon the trial. The appellants, plaintiffs in the trial court, proved the issuance and delivery of the policy of insurance, the fact that the deceased was dead, that demand was made by the appellants as beneficiaries for payment by appellee and that payment was refused. They made proof as to what was a reasonable attorney's fee in the premises, and proved that the deceased in his life time had been successful in business, had a happy home life with his wife and two daughters and had been active in civic, business, social and church life of his community. They made further proof to the effect that he was a person of even temperament and friendly disposition, who had never been heard by any of the witnesses testifying in behalf of appellants to express any intention of taking his own life.

The evidence adduced on trial by the appellee was voluminous and detailed as to the manner in which the deceased came to his death at Galveston, Texas, December 4, 1947. From it the following testimony is summarized:

Mrs. Nannie Laura Mull, the widow of Arzo Oliver Mull, the deceased insured, and the mother of his two daughters, ages 10 and 12, testified that her husband died in Galveston, Texas, December 4, 1947; that on Monday evening, October 4, 1948, she testified by deposition in Cleveland, Texas, that Mr. Pete Davis of the First National Bank had in his possession a letter that her husband wrote to her before his death and that the next day after giving her deposition she obtained the letter from Mr. Davis and burned it; that her sister, Mrs. Dollie Davis, read the letter aloud in the presence of Brother Bass (her pastor), Mr. Brady, her father, and Mr. Mull's sister, Mrs. Ruby K. Martin; that she heard the letter read and saw the first line of the letter; that the letter was in the handwriting of her husband; and in the first line that she saw her husband said that "by the time she got the letter he would be no more"; that the rest of the letter which she heard read was personal to her and the children, what she should do with the children and the way she should handle his affairs.

Mrs. Dolly Grady Davis, a sister of Mrs. Nannie Laura Mull, testified that she had known her brother-in-law A. O. Mull 18 years and knew his handwriting; that she read a letter in his handwriting to his wife Mrs. A. O. Mull, written from Galveston, Texas, on December 4, 1947; that she read the letter in her home in the presence of Mrs. Mull, her father, Mr. Grady, and their minister, Brother Bass, and Mr. Mull's sister Mrs. Martin; that her sister, Mrs. Mull, was sitting next to her on the divan while she was reading the letter and that she correctly read the letter, just as it was written; that in the letter he stated "when you receive this letter I will be no more", and that he also stated in the letter that he wanted his wife to return a few books that belonged to Mr. Scott and some books that belonged to Mr. Alvin Davis; that the letter was dated December 4, 1947, postmarked Galveston, Texas, and addressed to Mrs. Nancy Mull and the salutation was "Dear Nancy and Girls"; that she didn't get the letter out of the post office and didn't remember who handed the letter to her.

Mrs. Mull, by oral deposition taken on October 4, 1948, testified that her husband went to Galveston on December 3, 1947, accompanied by Brother Bass to take the shock treatment; that they left Cleveland about noon in Brother Bass' car and had planned to be gone a couple of weeks; that she and Brother Bass had previously gone to Galveston and talked to Dr. McMillan and he said that by talking to Mr. Mull he would understand his case better and asked that he come down; this was about a week before December 1st; that Mr. Mull was always saying he didn't feel good and he had tried all the medical doctors and Brother Bass suggested that they go talk to Dr. McMillan.

Pete Davis with the First National Bank of Cleveland, Texas testified that he knew Mrs. A. O. Mull, her father Mr. Grady, her sister, Mrs. Dollie Davis and Preacher Bass; that on the day of the funeral of A. O. Mull in Cleveland, Texas Preacher Bass gave him a letter addressed to Mrs. A. O. Mull for safe-keeping and that Mrs. Mull came to the bank and got the letter about a week before the trial of the case and before the subpoena was served upon him to bring the letter to Court; that he didn't read the letter but put it in a long brown envelope and put Scotch tape on it; that the letter was posted Galveston, December 4, 1947; that he and Mull had been business and social friends for approximately 15 years and they belonged to the same church; that Mull was a regular attendant and was superintendent of the Sunday School for several years, a Director of the Boy Scouts and a member of the Lion's Club; that Mull was around 40 or 45; that he was very affable in his business and social life and seemed to enjoy his family life; that he didn't notice any change to amount to anything in Mr. Mull's nervous or social condition as he was not real close to him; but Mull did tell him about being in bad health and having his teeth pulled.

James Marlin Grady, the father of Mrs. Nannie Laura Mull and the father-in-law of the deceased A. O. Mull, testified that the Mulls had been married 12 or 14 years; that he noticed a change in Mr. Mull's general condition shortly before his death; that he made three or four trips to Houston to see Dr. Ghent Graves; that he began losing weight and lost from 150 pounds to about 121 when he died; that he first observed this change in October before his death in December, 1947; that outwardly he didn't appear to be nervous; that he did not appear to be emotionally upset but appeared to be calm; that he had all of his teeth pulled out around May or June before his death in December; that he was present when a letter that Mull had written to his wife before his death was read; that the letter was written the day of Mull's death and he got it out of the mail and that he turned it over to Mrs. Mull after he had read it and that his other daughter, Dollie Davis, read the letter aloud to all present, and then turned it over to Mrs. Mull; that the substance of the letter was "When you get this letter, I will be no more"; that the letter was written in Mull's own handwriting and signed by him; that the letter gave no reason for his contemplated act; that when his daughter married Mull he was a telegraph operator and was connected with Mrs. Austin's Bank in Cleveland as cashier for four or five years; that he was a partner with Theo Scott and Bidwell C. McClelland, Jr., in the Home Building Supply Company and did bookkeeping for several other firms; that he had two children and was active in church and civic work, belonging to the Lion's Club, Head of the Boy Scouts, a member of the Volunteer Fire Department and superintendent of the Sunday School, was a good mixer, pretty friendly, cheerful, good-natured and his home life splendid; that Reverend Bass accompanied Mull to Galveston to be put in the hospital just before his death and he gave Reverend Bass a check for $100.00 to pay his entrance fee in the hospital.

Dr. Tom McMillan testified by written deposition that he was licensed to practice medicine in 1940, graduating from the medical branch of the University of Texas and interned at San Diego County General Hospital, San Diego, California, and for six years had specialized in neurology and...