National Life & Accident Ins. Co. v. Karasek

Decision Date06 March 1941
Docket Number6 Div. 821.
Citation200 So. 873,240 Ala. 660
CourtAlabama Supreme Court
PartiesNATIONAL LIFE & ACCIDENT INS. CO. v. KARASEK.

Appeal from Circuit Court, Jefferson County; W. L. Hogue, Special Judge.

Action by Morris Karasek against the National Life & Accident Insurance Company, to recover double indemnity benefit under life policy. From a judgment for plaintiff, defendant appeals. Transferred from Court of Appeals under Code, 1923 § 7326.

Reversed and rendered.

Wm. A Jacobs, of Birmingham, for appellant.

Robt. S. Gordon and Nina Miglionico, both of Birmingham, for appellee.

THOMAS Justice.

The rendition of judgment against defendant is assigned as error. The case was tried by the court without a jury, and the recognized presumptions obtain to support the judgment rendered. Andrews v. Grey, 199 Ala. 152, 74 So. 62.

The suit was on a policy of life insurance with a double indemnity clause when death was caused by accidental means. Plaintiff-appellee is the beneficiary under said policy with double indemnity benefits issued by defendant-appellant insurance company to his wife, who died on September 16 1939, "of arsenic poisoning," due to taking a dose of rat poison. The defendant-appellant paid the value of said insurance policy in case of natural death and secured from plaintiff a "Death Claim" receipt, signed by him. But defendant refused to pay the double indemnity benefits for accidental death.

On the day preceding her death, the insured had gone with Mrs. Sullivan, the lady in whose home she and her husband were living, to a doctor's office. Mrs. Sullivan, however, and not the insured, was the patient. Later they drove by the home of a lady with whom insured and her husband had previously stayed, and who had just lost her husband, the insured being fond of that friend's children. That afternoon the friend and the insured played cards and had several drinks. The insured's husband went by this house to bring his wife back with him, but she did not so return. According to the friend, who testified for the defendant, there was no evidence of friction between the husband and wife. Mr. Karasek, the insured's husband, states in substance that they must have had something planned, that is why she didn't want to come back. We had not had any trouble or disagreement that night, no argument at all. The next morning September 15th, the insured got this friend "to promise her that I would go back and get her that afternoon." But Mrs. Powell further stated, "I didn't have any special trouble in getting her to go home" and took her home about one p. m.; that she was not especially agitated, and "I took her over to her house and just let her out;" and that the insured found her husband, the plaintiff-appellee, at home. They had a conversation for thirty minutes, and then he went out to get his tire fixed. The evidence further shows that Mrs. Sullivan saw her shortly after 3 p. m. of the same day and insured "was sitting on her bed and said she felt bad;" that she presented herself dressed in a "gown, a smock"; that Mrs. Sullivan went back and talked to her about 4 p. m. for a few minutes. "She appeared to be normal. She said nothing to me about intending to commit suicide nor did she do anything at that time that would indicate that she had such intention." In about thirty minutes, around 4:45, the insured came to the front porch where Mrs. Sullivan was sitting, and asked for an envelope. She was dressed in a gown and smock. Mrs. Sullivan "Stepped inside the door to give her the envelope and she (the insured) fell in my arms." Mrs. Sullivan "asked her what was wrong, and she said that she had taken her medicine and that she couldn't see." Mrs. Sullivan took her into the kitchen where two bottles were sitting on her ice box together. The assured said, "this is what I taken." Mrs. Sullivan testified that there are two windows in the kitchen and that the ice box, on which the two bottles were sitting, was not by the window, just by the side of the wall. One was a bottle of "Veegex" and the other was a bottle of "Rattle Cap" poison. "The two bottles had been sitting there side by side for a couple of weeks. But there were times when those two bottles were not there together." Both substances are semi-fluid and similar in color. The appellee testified "it was customary for my wife to keep the Veegex near the ice box, and the Rattle cap poison in the corner. The reason why I got the Rattle Cap was on account of the ants. I accidentally put that Rattle cap on the shelf. It was my intention to remove it."

Dr. Wallace, witness for the defendant Insurance Company, testified that although he had not prescribed the Veegex, it was a "preparation to build up the blood, vitamin B, G and B sub2 ." He further stated "there was nothing harmful about it. It is a tonic."

Dr. Hightower, of the Hillman Hospital staff, testified that Rattle Cap poison is a semi-fluid. The color is dark brown, something like a hoar-hound color. The plaintiff-appellee, insured's husband, testified he gave the insured her first dose of Veegex. "She took it very often. She would take about three-fourths of a teaspoon full and dissolve it in water, and dissolve it, and then drink it."

Mrs. Sullivan testified that the insured took this Veegex two or three times a day, according to the directions. "She would dissolve it in water, just warm water or cold water. She would take it in a spoon and dissolve it in water just like a thick paste or sirup and then drink it."

Mrs. Sullivan took the insured into the kitchen and asked her what she had taken, and the insured stated "she took this medicine." Further that "those two bottles were sitting on her icebox together. It was fairly dark there in the room." The insured felt on the icebox, and said "this is what I taken. The Rattle Cap is what she picked up, but she told me she could not see." Further "There was a partially filled glass of water and a teaspoon near those two bottles, on the ice box. They were all three there together. The water was just a little gray and milkey looking." When she reached over there and said "I have taken," she said, "I have taken my medicine." I told her, "Well, Kathryn, you have taken the wrong thing." Her only reply was, "I am so sick." Mrs. Sullivan stated further: Mrs. Karasek did not tell me that she had taken Rattle Cap poison.

Mrs. Sullivan called an ambulance; the insured was admitted to the Hillman Hospital around 6:30 that afternoon; and Mrs. Jones, the admitting clerk, at this hospital, testified that the insured was "vomiting considerably when she came in my office. She was brought in on a stretcher. She was in pain at the time." Mrs. Jones testified that in reply to the question how she became injured, Mrs. Karasek stated to her that she took rat poison. "During the time that I was asking her questions, she was vomiting intermittently." Mrs. Jones then asked her how and by whom the poison was given, and placed on the report, "herself, on account of ill health." The admitting clerk testified that: "I wrote the exact meaning of what she said down on that sheet: The reason for doing the thing. My testimony was the substance and meaning of what she said to me." Further "What I wrote was my interpretation of what she said to me on that occasion;" that assured "didn't mention the word suicide. She didn't say anything about attempting to commit suicide;" that the patients signed the Admitting Report when they are able; but that "Mrs. Karasek did not sign any of the papers in the record. I wrote on the record that she was unable to sign * * * she was given to intermittent spells of vomiting and sickness and was unable to sign her name on these reports."

Dr. Dowdy, one of the two doctors who saw Mrs. Karasek at the hospital, testified: "Mrs. Karasek was beyond talking when I saw her. All I did was to pronounce her dead. I read the record that the man had written and saw her when she came in, and I then entered on the Hospital record: 'patient admitted 6:45 p. m. on September 15, 1939, after having taken rat poison.' I didn't know whether she took it accidentally or purposely and the hospital record doesn't show whether it was accidental or intentional death."

Dr. Hightower, doctor at Hillman Hospital, testified: "I put on the death certificate that the death was suicide. I did not speak to Mrs. Karasek. She said nothing to me. I based the statement that it was suicide on what other people told me."

The evidence shows that Mr. Karasek, the insured's husband, got to the hospital about 7:30 that night, and asked insured, "What on earth happened?" and she said "God knows, honey, I don't know, I don't remember." Mr. Karasek said "God have mercy on you" and she replied "I have done the wrong thing."

The defendant appellant's witness Ballard said that he used to be an agent for the defendant appellant; that he investigated this claim, "the company didn't send me, I just went around there;" talked with Mrs. Sullivan and she told him that "Mrs. Karasek had told her at the time that she took this medicine that she had taken something that it would send her where you cannot write letters."

Mrs. Sullivan testified in rebuttal that she did not tell Mr. Ballard that but she told him that Mrs. Karasek had taken Rattle Cap poison. Mrs. Karasek did not tell me in substance, so Mrs. Sullivan testified that she had taken poison and that she was going where they did not send mail; she did not tell me anything like that. "I didn't tell Mr. Ballard that she had told me anything like that."

The insured was treated by Dr. S. N. Wallace during the first part of April, 1939, because she was in the habit of taking morphine. She was treated in the hospital until April 30th and the doctor stated: "Whe...

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