Mutual Benefit Health & Accident Ass'n v. Denton

• Decision Date: 19 November 1938
• Citation: 124 S.W.2d 278
• Parties: MUTUAL BENEFIT HEALTH & ACCIDENT ASS'N v. DENTON.
• Court: Tennessee Supreme Court

Page 278

124 S.W.2d 278

MUTUAL BENEFIT HEALTH & ACCIDENT ASS'N v. DENTON.

Court of Appeals of Tennessee, Middle Section.

November 19, 1938.

Certiorari Denied by Supreme Court February 4, 1939.

Appeal in Error from Circuit Court, Rutherford County; T. L. Coleman, Judge.

Action by Mrs. Frances Denton against the Mutual Benefit Health & Accident Association to recover as beneficiary under an accident policy issued by defendant. Judgment for plaintiff for $2,999.99, and defendant appeals in error.

Reversed and dismissed.

D. L. Lansden and McConnico, Hatcher & Waller, all of Nashville, for plaintiff in error.

Jackson & Buckner, of Murfreesboro, for defendant in error.

FAW, Presiding Judge.

This is an appeal in error by Mutual Benefit Health & Accident Association, a non-resident corporation domesticated in Tennessee, the defendant below (and hereinafter designated as defendant), from a judgment for $2,999.99 and costs in favor of Mrs. Frances Denton, the plaintiff below (and hereinafter designated as plaintiff).

John W. Denton died on February 17, 1937, and plaintiff is his widow, and was named as the beneficiary in an accident policy issued by defendant on December 3, 1936, by which policy defendant contracted to pay $5,000 on proof of the death of said John W. Denton, the insured, resulting, directly and independently of all other causes, from bodily injuries sustained through purely accidental means, and providing that "suicide, sane or insane, is not covered."

Defendant declined to pay the sum stipulated in the policy, or any part thereof, and plaintiff brought her action in the Circuit Court of Rutherford County on May 25, 1937, for $7,500, and filed her declaration containing appropriate averments with respect to the policy contract, proofs of loss, defendant's refusal to pay, etc., and averring that "on February 17, 1937, the said John W. Denton suffered an accidental injury, causing his death on said day; he being accidentally shot through the head, resulting in his death."

On June 21, 1937, the summons and declaration were (by leave of the Court granted on plaintiff's application) amended so as to reduce the amount of plaintiff's demand to $2,999.99.

On June 23, 1937, the defendant filed two pleas — nil debet and non assumpsit. These pleas admitted every defense material in this case, whether by way of denial or avoidance (Provident Life & Accident Insurance Co. v. Prieto, 169 Tenn. 124, 159, 83 S.W.2d 251), and, upon the issues thus made, the case was tried to a jury, who found the issues in favor of the plaintiff and fixed the amount of her recovery at $2,999.99, and the Court rendered judgment accordingly against the defendant for $2,999.99 and all the costs of the cause.

Defendant's motion for a new trial was overruled, and defendant thereupon appealed in error to this Court, and is here insisting, through assignments of error, that there was no evidence upon which the jury might properly base a judgment for the plaintiff, and that the trial court erred in overruling defendant's motion (which was made at the close of all the evidence) to direct the jury to return a verdict in favor of the defendant.

The insured, John W. Denton (to whom we will, for brevity, refer either as Denton or as the insured), was, for eight years before and until his death, a resident citizen of the town of Murfreesboro, where he operated a business as a coal dealer and maintained an office at his "coal-yard".

About nine o'clock in the morning of February 17, 1937, Denton was found dead in his office. He was seated in an armchair, with a revolver (sometimes referred to in the record as a pistol and sometimes as a gun) gripped in his hand, and a bullet wound through his head. It was stipulated of record at the trial below "that Mr. Denton died from the bullet wound in the head."

The evidence had no tendency to prove, and it is not claimed, that any one other than the insured was responsible for his death; hence the sole controversy in the trial court was, whether the pistol shot that killed Denton was fired by him accidentally, or with the intent to destroy his own life.

The verdict implies that the jury found that the shot which caused Denton's death was fired accidentally and not intentionally. The inquiry in this Court is, whether there was any evidence upon which the jury could base such finding, that is, "some evidence of a material or substantial nature". The "scintilla rule" does not obtain in this State. Brenizer v. Railway, 156 Tenn. 479, 484, 3 S.W.2d 1053, 8 S.W.2d 1099.

Shortly before nine o'clock A. M. on the day of his death, Denton sent George Binford, a negro porter in his employ, to the post office for his mail, and when Binford returned he found Denton in his office dead. Binford called Mrs. Denton on the telephone, and then went out on the street to "get somebody". In a few minutes, the witnesses Travis, Woodfin, Powers, Cannon and Vaughn had assembled at Denton's office, and, in their testimony, they describe the situation and condition of the body of Denton, and the surrounding appearances in the office. Woodfin was the coroner of Rutherford County and also the undertaker, who later prepared Denton's body for burial. Powers was Chief of Police of the town of Murfreesboro. Vaughn was a Justice of the Peace at Murfreesboro. Travis and Cannon were business men, whose places of business were near that of Denton.

The witnesses do not disagree in their testimony about any material matters; hence there were no conflicts of testimony or questions of the comparative credibility of witnesses to be determined by the jury; so that, another way of stating the question for decision by this Court is, whether the jury could reasonably infer from the undisputed facts in evidence that Denton shot himself accidentally?

The witnesses found the dead body of Denton in an armchair, and in such a position as that, if referring to a living person, it might be said that he was seated in a natural position. His head was inclined toward his right shoulder and was resting against the back of the chair at its right corner. His legs were crossed (with the left leg over the right leg) and his left hand was lying upon and across his left leg and "gripping" the handle (or butt) of a revolver. His right arm was "swinging down" across the right arm of the chair. There was a bullet wound through his head. The bullet had entered about one inch to the rear and slightly higher than his left ear, and had made its exit above the right ear and a little higher than the point of entrance. Denton's hat and eye glasses were on the floor at the right of the chair in which he was sitting, and there was a powder-burn on the left side of the hat "about the size of a dollar".

The chair in which Denton's body was found was sitting near a desk which the witnesses describe as a "standing desk", meaning, as they explain, that, because of its height, it was designed for use by a person standing beside it, and could not be used by one seated in a chair. When his body was found in the chair, Denton's keys, knife and pipe, and a wire and cloth suitable for cleaning a pistol, were found on the desk above mentioned.

The record contains two photographs which are a material aid in visualizing the position of Denton's body in the chair when found by the witnesses. The witness Travis posed for these photographs by seating himself in the same chair and in the same posture as he found Denton a few minutes after the fatal shot was fired. All of the witnesses who saw Denton in the chair agreed that the photographs accurately reproduce the position and situation of Denton's body and its surroundings, with the single exception that the witness Powers thought the legs were "more straightened out" and were "crossed over" somewhat differently; but otherwise he thought the picture showed "the accurate position" of Denton's body in the chair. This slight difference as to the position of Denton's legs was wholly immaterial.

Denton was left-handed, according to the testimony of his porter, George Binford, and he was ambidextrous according to the testimony of his son-in-law, John Jolley.

The pistol in Denton's hand, when he was found dead as aforesaid, was a "Hopkins & Allen" revolver, with five chambers for cartridges in the cylinder. There was one empty shell, which was under the hammer, and there were three cartridges in the cylinder that had not been fired. The empty shell showed that it had been "snapped on" twice and two of the cartridges that had not been fired had been "snapped on". The revolver was designed for center-fire cartridges, and one of the unfired cartridges that had been "snapped on" was a rim-fire cartridge that could not be fired by this gun. The cylinder revolves to the right, and there is evidence that the cartridge that had not been "snapped on" was in the next chamber to the right of the empty shell.

The pistol by which, it is conceded, the shot was fired that killed Denton was, according to the undisputed testimony of plaintiff's witness Vaughn, "just an old dirty gun", and in "very bad condition". Vaughn stated that he did not notice whether it had just been cleaned or not, but Powers stated that, "this gun showed all evidences of having been cleaned and oiled." However, no witness testified that there was an oil can or any oil in Denton's office at the time in question. The witness Travis enumerated the several articles on Denton's desk as before mentioned, and he was later asked if he noticed any gun cleaning oil on the desk, and he replied: "I don't remember about the oil, but there was a wire with some wrapping on it and some rags — looked like they had cleaned a gun."

George Binford, colored, was employed by Denton at his coal-yard for four or five years before and until Denton's death. Binford testified that he and Mr. Denton were at the coal-yard early on the morning of February 17, 1937; that Mr. Denton had "gotten out...