Provident Life & Accident Ins. Co. v. Prieto

• Decision Date: 06 April 1935
• Citation: 83 S.W.2d 251
• Parties: PROVIDENT LIFE & ACCIDENT INS. CO. v. PRIETO.
• Court: Tennessee Supreme Court

83 S.W.2d 251

PROVIDENT LIFE & ACCIDENT INS. CO. v. PRIETO.

Supreme Court of Tennessee.

April 6, 1935.

Rehearing Denied June 10, 1935.

Error to Circuit Court, Obion County; R. A. Elkins, Judge.

Action by Clara M. Prieto against the Provident Life & Accident Insurance Company. Judgment for plaintiff was reversed and the case remanded by the Court of Appeals, and both parties bring certiorari.

Judgment of Court of Appeals reversed, and that of circuit court affirmed.

See, also, (Tenn. Sup.) 76 S.W.(2d) 314.

Fitzhugh, Murrah & Fitzhugh, of Memphis, for plaintiff in error.

Pierce & Fry and W. M. Miles, all of Union City, for defendant in error.

EDWARD J. SMITH, Special Justice.

As beneficiary of a policy of accident insurance issued by the Southern Surety Company to her husband, J. A. Prieto, liability of which was assumed by the Provident Life & Accident Insurance Company, Clara M. Prieto, individually, and as executrix of the estate of her deceased husband, instituted this action at law against the latter company to recover the sum of $10,000, the face value of the policy, on the ground that while the policy was in force, J. A. Prieto died as the result of an accidental discharge of a pistol.

The defendant interposed two pleas of the general issue: (1) That it did not owe the plaintiff, as in her declaration alleged; and (2) that it did not undertake and agree as plaintiff alleged in her declaration.

The plaintiff obtained a judgment in the circuit court from which the defendant prayed an appeal in the nature of a writ of error to the Court of Appeals, and there assigned twenty-three errors.

Overruling the defendant's assignments, to the effect that the trial judge erred in denying its motion for a directed verdict, and in refusing to grant a new trial, that court sustained certain other assignments of the defendant, based on alleged errors in the charge and the failure of the trial judge to charge certain special requests of the defendant. The judgment accordingly was reversed, and the case remanded for a new trial.

Petitions for the writ of certiorari, prayed by both parties, were granted, and have been argued at the bar.

For convenience, the parties hereafter will be styled as they were in the trial court; that is, as plaintiff and defendant.

As the defendant's petition is based on alleged errors of the Court of Appeals in not sustaining its assignments that the trial judge erred in denying its motion for a directed verdict, and in overruling its motion for a new trial, its petition will be considered first, as these assignments require a statement of the salient facts.

Prieto, who at the date of his death was about fifty-nine years of age, for many years had been one of the most prominent citizens of Union City. Twice elected mayor, he was serving in that capacity at the date of his death on September 16, 1932. He also was the secretary and active manager of the Union City Savings Building & Loan Association, and was local agent for several fire insurance companies.

That he was held in high honor and esteem by his fellow citizens is evidenced by the fact that many character witnesses, including prominent preachers, professional and business men, testified at the trial.

He was a very active man, working, as a rule, from 7 o'clock in the morning until 6 o'clock at night. The evidence shows that he was of a bright, sunny, and genial disposition, that his family relations were all that could be desired, and that he was not involved in any serious financial difficulties. Whatever cares and anxieties, if any he had, he kept strictly to himself.

In the spring of 1932, his family physician advised that, due to a malady of the heart, he should take a rest. His blood pressure was above normal. He had suffered from a hernia since 1913, but this did not seem to impair his general health. In the early summer of 1932, he and his wife went to Mobile for ten days. The revelation that he had a heart ailment did not, according to his physician, depress him or cause him, in the least, to lessen his activities in the discharge of his public and private affairs.

Early in the summer of 1932, Mrs. Prieto received a letter from a friend in Tampa, Fla., stating that after the death of a brother of her husband, complications had developed in settling his estate. She communicated this fact to her husband, and asked him if he had made a will, stating that as they were childless, if he died intestate, his relatives might give her similar trouble. He replied that he had not made a will, but would do so, and accordingly on June 10, 1932, he executed a holographic will by which he gave all of his property to his wife, and provided that whatever remained at her death should go to Joseph Anderson Ward, a boy about thirteen years of age, whose mother had lived at the Prieto home since 1915, and who was treated by Mr. and Mrs. Prieto as if he had been their own son. The fact of the execution of the will is adverted to merely for the purpose of showing that it cannot fairly be considered as having been executed in contemplation of an early death, either from his physical ailment, or intentional self-destruction.

He had approximately $40,000 of other insurance, life and accident, in force at the date of his death. One $5,000 double indemnity policy had lapsed shortly before his death, and to secure its reinstatement, he had forwarded to the home office of the company a check in payment of the premium, but the company had not passed on the application for reinstatement at the date of his death.

About sixty days before his death, Prieto, in his office at the Building & Loan Association, introduced Brush, sheriff of Obion county, to a traveling salesman, whose name Brush could not recall, but who was described by him as being thick-haired, stoutly built, and weighing about 150 pounds. Brush testified that in his presence Prieto and the traveling salesman discussed the question of the latter's exchanging a 32 Smith & Wesson pistol for Prieto's 25 Colt's automatic pistol, and that it was agreed that when the traveling salesman again came through Union City the matter would be further discussed and considered.

About the same period of time prior to his death, while at home for dinner, he asked Mrs. Edna Ward to remind him to take his pistol when he returned to his office. After dinner, he went to a bureau drawer, got the pistol, and carried it to his office. He told Mrs. Ward that he intended to trade it with a gentleman.

About three weeks prior to his death, he told Mrs. Ruby Oliver, who was employed in the office in which he conducted his fire insurance agency, that he expected to trade pistols with another gentleman.

On September 16, 1932, about 1:30 o'clock, he met Brush in the corridor of the courthouse, and asked him what he intended to do late that afternoon. Brush replied that he had to go to Arkansas to return a prisoner, and expected to be back about 5:30 o'clock. Prieto stated that he wanted Brush to clean his little pistol, as he expected to meet a man about 6 o'clock for the purpose of trading guns.

About 3 o'clock, he discussed with Guill, commissioner of finance of Union City, certain official matters which would come up for consideration the following Tuesday. He appeared to be in his usual genial frame of mind, and Guill saw nothing out of the ordinary in his demeanor.

About 5 o'clock, in company with some friends, he had a drink of Coca Cola, and was playing a game called "baffle board" at the Ford automobile agency. These witnesses testified that he was in good spirits, and even in a jovial mood.

At seven minutes to 6 o'clock, a time definitely fixed by Mrs. Brush because, as she stated, she looked at the clock to tune in on a radio program to which she wished to listen, Prieto called the Brush home, and asked if Brush had returned. Mrs. Brush replied that he had not, but that she would have him call Prieto as soon as he came in, to which he answered, not to bother her husband as "he could do it himself."

About 6 o'clock, the fair inference being after he had called the Brush home, he went across the street to a garage conducted by Alexander, and requested the latter to cut a piece of 14 wire about eight inches long, and to put a little loop at the end of it.

After he got the wire, and had returned to his office, he stepped next door, and asked a negro, named Robinson Hill, commonly called "Hi," to get a package of chewing gum, and when Hill returned with it, Prieto met him at the door of his office, thanked him for doing the errand, and at the time, according to Hill, had a can of oil and a towel in his hand. He stated to Hill that he was waiting to see a man, and did not want to miss him.

Shortly after Hill had returned to the automobile service station, and was engaged in washing an automobile, a shot was heard, and soon a large crowd gathered. Ragsdale, who was the first to enter the office, found Prieto, lying on the floor, at a point about sixteen or seventeen feet from his desk.

Dr. Kimsey, who arrived shortly after Prieto's death, testified that death was caused by a bullet which entered about a quarter of an inch to the right of the left nipple, and about two inches above it, piercing the aorta, and coming out under the left shoulder at an elevation of one-half to three-quarters of an inch. This witness further testified that a 25 Colt's automatic pistol, pointing north, was lying on Prieto's desk, a position he would have been facing when seated at his desk, and that he also found on the desk a piece of wire with a loop at the end, a small can of oil, a towel which appeared to have grease or oil on it, and a piece of cotton, which was not stained by grease or oil, lying on the floor, which he picked up and placed on the desk.

Another witness, Beadles, testified as to the soiled condition of the towel found on the desk, and also that the shell of a bullet of the exact caliber of a 25...