Noller v. Aetna Life Ins. Co.

• Decision Date: 08 June 1935
• Docket Number: 32289.
• Citation: 46 P.2d 22,142 Kan. 35
• Parties: NOLLER v. ÆTNA LIFE INS. CO. et al.
• Court: Kansas Supreme Court

46 P.2d 22

142 Kan. 35

NOLLER v. ÆTNA LIFE INS. CO. et al.

No. 32289.

Supreme Court of Kansas

June 8, 1935

Rehearing Denied July 6, 1935.

Syllabus by the Court.

Where bodies of insured and wife were found on bed in their home each with shot in head from same gun lying on bed where it could have fallen from hand of either and blebs had flowed from mouth of wife showing that she lived three or four minutes after shot, and neighbors testified that noises like shots occurred a minute or two apart, whether wife named as beneficiary in husband's life policy survived him held for jury.

Where bodies of insured and wife were found on bed in their home each with shot in head from same gun lying on bed where it could have fallen from hand of either and blebs had flowed from mouth of wife showing that she lived three or four minutes after shot, and neighbors testified that noises like shots occurred a minute or two apart, whether wife, named as beneficiary in husband's life policy, killed husband so as to preclude her estate from recovering proceeds of policy held for jury.

Beneficiary of life policy must be convicted of crime of killing insured before beneficiary can be barred from receiving benefits of policy (Rev. St. 1923, 22--133; Rev. St. Supp. 1933 40--414).

1. In an action on an insurance policy where a husband and wife were found dead under such circumstances as to make it doubtful as to which one survived, the record is examined and it is held that there was sufficient evidence from which the jury might have found that the wife survived the husband, and the question should have been submitted to the jury.

2. In a case such as that described in the above syllabus, it is held the evidence does no compel a conclusion that the wife killed the husband.

3. In order for the beneficiary of a life insurance policy who kills the insured to be barred from receiving the benefits of the policy, the beneficiary must first be convicted of the crime.

Appeal from District Court, Shawnee County, Division No. 2; Paul H Heinz, Judge.

Action by W. C. Noller, administrator of the estate of Asenath Hammatt, deceased, against the Aetna Life Insurance Company and others. From an adverse judgment, the plaintiff appeals.

Judgment reversed, and cause remanded, with directions.

Randal C. Harvey and Henry M. Evans, both of Topeka, for appellant.

Bennett R. Wheeler, S. M. Brewster, J. L. Hunt, Margaret McGurnaghan Ralph M. Hope, and John H. Hunt, all of Topeka, for appellee Aetna Life Ins. Co.

James E. Smith, E. H. Hatcher, Frank H. McFarland, and Clayton M Davis, all of Topeka, for appellee Edward D. Osborn, administrator.

SMITH Justice.

This is an action on a life insurance policy. The dispute was between the administrator of the estate of a husband and the administrator of the estate of his wife. Judgment was for the administrator of the husband's estate. The plaintiff appeals.

The policy was taken out on the life of one Daniel C. Hammatt. The policy provided that upon the death of the insured the amount of the policy would be payable to his wife if she survived him, and if she did not survive him, then to the child, children, or the estate of the insured or any one or more of them, in such manner as the trustees should determine. Mr. and Mrs. Hammatt died under circumstances that raise a question as to which one survived. After the death of Mr. Hammatt, the Aetna Life Insurance Company, as trustee, took the position that Mrs. Hammatt did not survive her husband. It selected the administrator of the estate of Mr. Hammatt as the proper person to whom the insurance should be paid.

The administrator of the estate of Mrs. Hammatt brought this action on the policy. He claims that Mrs. Hammatt survived her husband. The insurance company denied liability under the policy to the estate of Mrs. Hammatt. The administrator of the estate of Mr. Hammatt answered, claiming that he was entitled to recover the amount of the policy from the company. Upon the conclusion of the evidence, a demurrer was interposed by the insurance company. This demurrer was sustained. Judgment was rendered in favor of the administrator of the estate of Mr. Hammatt and against the insurance company.

The insurance company contends that there was no evidence from which the jury could conclude that Mrs. Hammatt survived Mr. Hammatt. The company also contends that if Mrs. Hammatt did survive, the evidence proved she must have killed Mr. Hammatt, and on this account could not receive the benefits of a policy on Mr. Hammatt's life.

The administrator for the estate of Mrs. Hammatt contends that there was ample evidence to establish a prima facie case that Mrs. Hammatt survived Mr. Hammatt, and that even if the evidence should show that she feloniously killed Mr. Hammatt it would not bar her from recovery on the policy, because the law does not bar a beneficiary from recovery on a policy for the reason that she feloniously killed the insured, in the absence of a conviction of homicide, and, further, that this defense was not pleaded and cannot be first raised on a demurrer to the evidence.

We will consider the question of the sufficiency of the evidence. The evidence as to the death of Mr. and Mrs. Hammatt was all circumstantial. Their bodies were found on a bed in their home on the morning of January 12, 1933. Both had been dead for some time. Each had been shot in the left side of the head with the same gun. This gun lay on the bed, where it could have fallen from the hand of either, but the hand of neither touched it. Mrs. Hammatt was left-handed. Mr. Hammatt was right-handed. They were last seen by their maid just before they retired, about ten minutes past seven the evening before. There was a small amount of blood which had flowed from the head of Mr. Hammatt. There had been profuse bleeding from the head of Mrs. Hammatt. A further circumstance in connection with the wound in Mrs. Hammatt's head was that there was about her mouth a considerable amount of froth and bubbles, some of which were referred to as blebs. An expert noted the blood, froth, and blebs around the mouth of Mrs. Hammatt, and testified that froth is formed by breathing through blood, and that blebs are formed by breathing through blood that has commenced to coagulate. He testified that blood will under normal conditions commence to coagulate in not less than three minutes. A ballistic expert testified that he examined the bullets that were taken out of the bodies, and that the bullet that was in the envelope marked with Mr. Hammatt's name was fired first. It should be stated here that there is some question about whether the person who prepared the envelopes was sure he put the right bullet in each envelope, but since the evidence on a demurrer must be given the interpretation most favorable to the plaintiff, this matter will be treated as though there was no question about that. The gun with which the killing was done was identified as having been owned by Mr. Hammatt for at least two years. Both shots were fired from the same gun.

On the night of the tragedy, Mr. Hammatt came home from the office about 5:15. During dinner he appeared quite distracted and ate very little. Mrs. Hammatt appeared to be unusually happy. They retired to their room about 7:10 and called down for more heat about a quarter of eight. Nothing more was heard from them that night. One of the maids left the house about 8:20 and did not return until morning. The other maid was out from 7:30 to 10:50 in the evening. It will be seen that from 8:20 to 10:50 there was no one known to have been in the house except Mr. and Mrs. Hammatt. About 10 o'clock in the evening, two neighbors living across the street testified they heard two noises, each of which sounded to them like a knock on the door. When they went to the door and looked no one was there. These noises were between one and two minutes apart.

Mr. and Mrs. Hammatt were married in December, 1929. Their married life had apparently been very happy. Mr. Hammatt was 52 years old and Mrs. Hammatt was 49 at the time of their death. Mr. Hammatt had worked for the Aetna Life Insurance Company for about 20 years. At the time of his death he was state cashier for that company. Mrs. Hammatt had been a stenographer before her marriage. She was a moody and temperamental person. She was somewhat addicted to the use of sedative drugs for headaches and sleeplessness. On occasions prior to her marriage she had taken overdoses. She was very fond of her husband, and he of her.

The question of which victim of a common disaster lived the longest is one of fact for the jury. See Russell v. Hallett, 23 Kan. 276. The burden of proof is on the plaintiff to prove that Mrs. Hammatt died later than Mr. Hammatt. Since there were no known witnesses to the tragedy, the only proof available is circumstantial. The trier of the facts must determine by inferences drawn from proved facts and circumstances just what the fact is.

In Railway Co. v. Wood, 66 Kan. 613, 72 P. 215, this court said: "Circumstantial evidence in a civil case, in order to be sufficient to sustain the verdict of a jury, need not rise to that degree of certainty which will exclude any and every other reasonable hypothesis. The jury is not infrequently called on to decide between two or more theories, and in doing so may exercise their own best judgment in accordance with their oath-bound conscience."

See, also, Lane v. Insurance Co., 113 Kan. 365, 214 P. 92, and cases there cited.

The above is still the rule amply sustained...