McMillan v. General American Life Ins. Co.

Decision Date22 May 1940
Docket Number15090.
PartiesMcMILLAN v. GENERAL AMERICAN LIFE INS. CO.
CourtSouth Carolina Supreme Court

As Amended on Denial of Rehearing June 29, 1940.

Thomas Cain & Black, of Columbia, and Grier, McDonald &amp Todd, of Greenwood, for appellant.

W H. Nicholson and W. R. Dunn, both of Greenwood, for respondent.

BONHAM Chief Justice.

This action is brought to recover on a policy of insurance issued by the appellant on the life of Thomas C. McMillan, with his wife, Mrs. Dona Mae McMillan, as beneficiary.

The complaint alleges the issuance of the policy; the death of Thomas C. McMillan; that due proof of his death was furnished the appellant and demand made for payment, which was refused.

For answer, the defendant admits its corporate capacity; the issuance of the policy; that Thomas C. McMillan died on or about October 21, 1938.

For further answer, it alleged that the policy was issued pursuant to its terms, stipulations and conditions, which is the contract between the parties; that a provision of the policy is thus stated in it: "In the event of a member's self destruction, sane or insane, within one year from the date on which his insurance hereunder became effective, the liability of the Company shall be limited to an amount equal to the premiums paid on his insurance."

It further alleged on information and belief that the death of the said Thomas C. McMillan was brought about through self destruction on the 21st day of October, 1938, hence, the only liability which exists against the defendant is a return of the premiums paid on the insurance, which has been tendered and refused, but defendant brings the money into Court and offers plaintiff may take judgment for that amount, to wit, seventeen and 66/100 dollars, premium and interest. Defendant denies each allegation of the complaint not herein admitted.

The case came on for trial before Judge Thomas S. Sease and a jury, at the October, 1939, term of the Court of Common Pleas for Greenwood County, and resulted in a verdict for plaintiff in the sum of two thousand dollars. From the judgment entered on this verdict, the defendant appeals.

At the trial, plaintiff's attorney introduced in evidence the original certificate of insurance, issued by defendant under group policy No. IN204164, and rested his case. Defendant offered a copy (by agreement) of group policy No. IN204164, with amendments and other papers attached, and then called Major Roy L. Cecil, who, being sworn, testified. For the present we content ourselves with saying that from the testimony of Major Cecil and Sheriff L. H. Harling it appears that: Thomas C. McMillan was engaged and employed under Major Cecil in the Internal Revenue Service of the United States, with headquarters at Greenwood, S. C. Their duties related to the investigation pertaining to the transportation and sale of non-tax paid whiskey, and to investigate the setting up and operating of fermenting machinery for the manufacture of illicit whiskey, and other investigations pertaining to taxes in the Internal Revenue Service, relative to whiskey. They carried pistols when they were at work. Mr. McMillan went to the Veterans' Hospital in Mississippi the last of September, 1938, and returned the evening of October 19, 1938, and reported to work. "The morning of October 21st we went to Edgefield, S. C., to conduct an investigation in that County and Aiken. We travelled in a government car, I drove it. It had in it a rear view mirror, which was just above the top of the windshield. On the way to Edgefield Mr. McMillan appeared to be very nervous. He said he was feeling fine and felt like working hard. He asked me several times where we were going and what we were going to do. On the way down we saw two cars, and a car and a truck, sitting near a saw mill stand; he said, 'Major, I think those are whiskey cars, ***." I replied that the car and truck belonged to saw mill people and were used for that purpose. He wanted to relieve himself and I told him it was not necessary to go to the woods, to stop by the road; this he did, and got back in the car. He complained a number of times about my driving, why was I driving so slow. I was driving faster than my usual speed; I was driving about fifty-five to sixty miles an hour. We arrived at Edgefield about nine-twenty. He carried his pistol in his holster on his right hand side. It was a thirty-eight Smith & Wesson special, four-inch barrel. He got that pistol from an officer in Newberry County; I was present. He told the fellow that if the pistol was all right he would buy it. When we got to Edgefield I told Mr. McMillan I was going to the Court House and get Sheriff Harling. I parked the car in front of the Court House about ten or fifteen feet to the left of the entrance, facing the building. I got out of the automobile, locked the car and took the key out of the switch. I noticed that Mr. McMillan did not get out of the automobile, which was his usual custom. I remarked: 'Mack, you are not going to get out?' He replied: 'No, Roy, I will wait for you here.' He usually called me Major, he had never called me Roy before. I put the key back in the switch of the automobile and told him to lock the car if he should decide to get out. I had my rifle and field glasses in the car. I then went into Sheriff Harling's office, which is on the ground floor. We looked over a map of Edgefield County for probably ten minutes. Sheriff Harling and I then left the Sheriff's office and came out of the Court House. The Sheriff was to accompany us on the investigation. As we walked out of the Court House door, I heard an explosion, which I thought to be an automobile backfiring, and paid no particular attention to it. We had got out of the building onto the concrete walkway, under the staircase, when we heard the explosion; we were just coming out of the door. We continued to the car which was five to eight paces from the front of the building. I found Mr. McMillan sitting in his usual seat on the right hand side, front, of the car with his head thrown back in a slumped condition, with blood gushing out of both sides of his head, with his pistol lying down in his lap, gripped in his hand with his trigger finger through the trigger guard on the trigger. Sheriff Harling and I stood there for a second, Sheriff Harling holding his head. I then called the Coroner and Dr. Dunovant. He was then in a dying condition. It couldn't have been over five or eight seconds after the explosion until we got there. He had the pistol in his right hand. I don't know whether he was a right-handed man. He carried his pistol on his right side all of the time. The wound on the right side of his head was quite large, skin and flesh were blown away, and brains blown out all over the top of the car. The hole on the left side was the usual size and type hole that a bullet would come out. That was the wound of exit, and that on the right side was the wound of entrance. All the windows in the car were up except the window on my side of the car, the left window, the right hand front window and the back windows were raised; they were closed. The only window that was down was the left hand front window by the driver's side. None of the windows that were up were broken. They were not shattered in any way. They had no holes in them. The windshield was all right, no damage to it. The rear view mirror, which I usually kept at all times when I am driving so that I could have a view of the road behind, was so turned that it would show a man's head, approximately so, sitting on the right hand front seat of the car. It was not in that position when I left Greenwood and drove to Edgefield, nor when I left the car to go to Sheriff Harling's office. The skin on the outer part of the wound looked a little dark; there were no powder burns on the skin that I could tell. I am not a physician. The bullet went practically straight through his head, may have ranged downward slightly. After going through Mr. McMillan's head, the bullet struck about four inches to the right of the door handle on the car which was parked opposite my car. Did not find the bullet; made search for it. When Sheriff Harling and I left the Court House we went straight to our parked car. We heard the explosion and walked to the car and saw Mr. McMillan; we walked about five to eight paces, about fifteen or twenty-five feet. We walked in our usual way. It took us five or eight seconds to get there, not over that. I saw no one in the vicinity of the car occupied by Mr. McMillan. The car which Mr. McMillan was in, was in our view when we emerged from the building; we were not looking at the car particularly. I was not looking at the car, just in the general direction, speaking to the people as we passed. Saw no one approach the car at that time; saw no one walk or run away from the car at that time. If there had been any one about the car as we emerged from the building, I could have seen them; I saw no one. I examined the gun in Mr. McMillan's hand; it was the one he was using, the one he got from the officer in Newberry. There was just one exploded cartridge in the gun. I heard but one explosion. I returned the gun to the officer at Newberry. I called the Coroner; he came in a few minutes. I also called Dr. Dunovant. Mr. McMillan's body was taken to the undertaker's in an ambulance. There were cars parked on both sides of my car in front of the Court House. My car was headed straight to the sidewalk. I would say that Mr. McMillan was about six feet tall; weighed around two hundred pounds. If Mr. McMillan were sitting in the automobile, the top of his head from the ceiling would be approximately six or eight inches."

On cross-examination by Mr. Nicholson: "I testified at...

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