Mutual Ben. Health & Acc. Ass'n of Omaha v. Reid

• Decision Date: 10 February 1966
• Docket Number: 6 Div. 957
• Citation: 279 Ala. 136,182 So.2d 869
• Parties: MUTUAL BENEFIT HEALTH AND ACCIDENT ASSOCIATION OF OMAHA v. Edith L. REID.
• Court: Alabama Supreme Court

Page 869

182 So.2d 869

279 Ala. 136

MUTUAL BENEFIT HEALTH AND ACCIDENT ASSOCIATION OF OMAHA v. Edith L. REID.

6 Div. 957.

Supreme Court of Alabama.

Feb. 10, 1966.

J. Kirkman Jackson, Birmingham, for appellant.

Murray A. Battles, Atlanta, Ga., and Fred C. Folsom, Cullman, for appellee.

LIVINGSTON, Chief Justice.

This appeal is from a judgment for the plaintiff for $5,000 of the Circuit Court of Cullman County, Alabama, based on a health and accident insurance policy issued by the appellant (defendant below), insuring the life of one Cannie T. Reid against accidental death. The death benefit was contained in a Rider attached to the health and accident policy.

The original complaint consisted of five counts, which was later amended by the addition of Counts 6, 7 and 8. Count 8 set out the policy sued on in haec verba. To the complaint as initially filed, and as amended, appellant filed a demurrer. The demurrer to Counts 1, 2, 3, 4, 5 and 6 was sustained, and overruled as to Counts 7 and 8. To Counts 7 and 8, the defendant filed first, a plea of the general issue; second, that the insured of the policy sued on came to his death by suicide; and third, Standard ard Provision 15 of the policy, which, in words and figures, is as follows:

'15. Insurance with Other Insurers: If there be other valid coverage, not with this Association, providing benefits for the same loss on other than an expense incurred basis and of which this Association has not been given written notice prior to the occurrence or commencement of loss, the only liability for such benefits under this policy shall be for such proportion of the indemnities otherwise provided hereunder for such loss as the like indemnities, of which the Association had notice (including the indemnities under this policy), bear to the total amount of all like indemnities for such loss, and for the return of such portion of the premium paid as shall exceed the pro rata portion for the indemnities thus determined.'

In connection with the third plea, the defendant tendered and paid into court the sum of $10.00, which it was stipulated was the amount required to be refunded under the provisions of the policy in the event it was decided that Standard Provision 15 applied.

The appellee (plaintiff below) took issue on those three pleas.

It was stipulated at the outset of the trial between counsel for plaintiff and defendant that the policy sued on was in force and effect at the time of the insured's death, and that the appellant had received appropriate notice and proof of his death, resulting from gunshot wounds sustained on May 4, 1961, and the plaintiff was the wife of the deceased and the beneficiary named in the policy, and that the policy was her property.

The case was tried by the court without a jury and the evidence was taken ore tenus before him. The circuit court entered a judgment for the plaintiff for $5,000 and the costs of court, and the defendant duly and seasonably perfected its appeal from that judgment.

The appellant assigns 10 alleged errors.

Appellant states in brief:

'In the written argument hereinafter made, the argument will be divided into two aspects only with respect to the main questions involved. The first of such aspects will be concerned with the rendition of a judgment in favor of the plaintiff and against the defendant rather than in the reverse, and in the expressed conclusion of the trial court that the deceased came to his death by accidental means. The second main aspect of the appended argument will be devoted to the correctness vel non of the ruling of the Court below on Standard Provision 15 of the policy of insurance declared on.

'Third, and very briefly, the further question is raised touching the correctness vel non of the exclusion from the evidence of the first page of the Coroner's Inquest.

'The application of the assignments of error to these three phases of the argument of the appellant being manifest, they will briefly if at all be alluded to in the written argument.'

The policy sued on became effective June 6, 1959. Undeniably, Cannie T. Reid was killed by the blast of an automatic shotgun on the morning of May 4, 1961.

The pleadings in the case are adequate to raise the three questions presented by appellant for decision of this Court, and we will discuss them as raised.

In Alabama, it is well established that where the evidence is taken ore tenus before the trial judge, this Court will not disturb the trial court's conclusion on issues of fact, which is likened unto the verdict of a jury unless plainly and palpably wrong.

The first question is: Did Reid commit suicide, or was his death accidental?

The trial court found the following facts:

'May 4, 1961 Cannie T. Reid arose from bed and went to the kitchen to turn on the stove. He then went back into the bedroom and awoke his wife and asked her to prepare breakfast. The evidence indicated that she had been in the kitchen about five minutes when she heard a blast from the front of the house. She hollowed for her son to see about his father. Both parties reached him a few seconds afterwards. They found him lying parallel to the bed with his feet toward the head. A 16 gauge shotgun was laying at the head of the bed with muzzle pointed in the general direction of the body. A spent shotgun shell was under the foot of the bed and near the deceased's head, a gunshot wound was in the deceased's upper chest and slightly to the left of center. He was dead at the time the Plaintiff and her son got to him. The deceased was dressed in jockey shorts and a sleeveless undershirt.

'There was testimony by several of the witnesses that he had made a statement the day before he had to clean his shotgun and he was going to carry it to the service station he owned which was only about 50 yards from where he lived.

'The testimony also indicated he had powder burns around the wound and also had powder burns on his left hand. The shotgun's magazine was empty and there were no other shells visible in or about the room. The room was relatively small and there were no facts concerning the dimensions of the room that lent any weight to whether he was accidently shot or whether he took his own life intentionally. There was no note or writing left by the deceased and there were no eyewitnesses to the shooting.

'The defendant offered into evidence the death certificate and the testimony of the Coroner, Mr. Grady Moss. He testified the powder burns in and about his chest and left hand and also the size of the wound along with his reasoning indicated that Cannie T. Reid took his own life.

'The deceased was fond of hunting and there was testimony that he had won the gun in a contest and was very proud of it. He showed it to many of his friends and acquaintances. Mr. Reid was right-handed but he fired a shotgun from his left shoulder.

'The testimony further showed that the deceased was a happily married man with three children, two of which were married. His bank statement and financial position was good. There was some testimony that he was worried about new interstate 65 bypassing his service station, however, the testimony of his gas supplier was such that his gallonage per month had not decreased by the building of the new highway.

'He was a man of even temper and loved to hunt, fish and other outdoor sports. He was jovial and from the testimony there was nothing that seemed to worry him. His health was also good.'

There was also evidence tending to prove that Reid had had the safety on this particular gun changed from a right-hand position to a left-hand position; that the gun had a 'soft trigger,' or fired easily; that at times there was a malfunction in the ejectment system of the weapon, and that as a result of same, the weapon had been accidently fired at times when it was thought to be empty of shells.

There are presumptions favoring love of life, avoidance of harm or danger, and with some limitations, exercise of ordinary care. While the presumption against suicide is a strong one, and while such presumption, the courts have declared, stands until overcome by testimony, it is prima facie only, rebuttable, and not a rigid rule of law. The presumption operates to its fullest extent only where there is no proof as to whether the death was accidental or suicidal. 31A C.J.S. Evidence § 135.

In the case of New York Life Insurance Co. v. Beason, 229 Ala. 140, 155 So. 530, the evidence relied upon to show self-destruction, as well as that tending to disprove suicide, was wholly circumstantial and afforded conflicting inferences, this Court said:

'The law presumes that a normal, sane person will not commit suicide, and this presumption, referred to in the books as a presumption of innocence, is not merely an administrative feature intended only to 'shift the burden or proceeding with the evidence' to the opposite party. It is a substantive right and not a mere 'technical incident of the trial wrought for administrative purposes.' It does not spend its force as substantive evidence until the testimony in the case is sufficient, in the judgment of the jury, to overcome it. Mutual Life Ins. Co. of N. Y. v. Maddox, 221 Ala. 292, 128 So. 383; New York Life Ins. Co. v. Turner, 213 Ala. 286, 104 So. 643.'

It was said in Penn Mut. Life Ins. Co. v. Cobbs, 23 Ala.App. 205, 123 So. 94:

'We do not mean to say that suicide cannot be established by circumstantial evidence, but we do lay down the rule as applicable to any case, either civil or criminal, that, where a felonious intent is involved, and the facts relied on to prove the act are circumstantial, the intent with which the act was done is a question for the jury, to be determined from all the facts and circumstances surrounding the transaction. Love v. State, 16 Ala.App. 44, 75 So. 189; Brown v. State, 142 Ala. 287, 38 So. 268; Jackson v. State, 94 Ala. 89, 10 So. 509; Wigmore Ev. § 300. Where the facts, as here, are...