Rothman v. North Am. Life & Cas. Co.

• Decision Date: 02 August 1972
• Docket Number: No. 543--II,543--II
• Citation: 500 P.2d 1288,7 Wn.App. 453
• Parties: Anita M. ROTHMAN, Appellant, v. NORTH AMERICAN LIFE AND CASUALTY COMPANY, Respondent.
• Court: Washington Court of Appeals

Page 453

7 Wn.App. 453

500 P.2d 1288

Anita M. ROTHMAN, Appellant, v. NORTH AMERICAN LIFE AND CASUALTY COMPANY, Respondent.

No. 543--II.

Court of Appeals of Washington, Division 2.

Aug. 2, 1972.

Review Denied Nov. 8, 1972.

Duane Lansverk and John Morse of Landerholm, Memovich, Lansverk, Whitesides Marsh, Morse & Wilkinson, Vancouver, and Earl W. Jackson, Battle Ground, for appellant.

Dale W. Read, of Jones, Read & Church, Vancouver, for respondent.

PETRIE, Chief Judge.

Anita M. Rothman brings this appeal from a judgment for the defendant, North American Life and Casualty Company, in her suit to collect the face amount of a policy of insurance on the life of her husband, Charles E. Rothman. Mr. Rothman died as the result of a gun shot would on August 6, 1969 within two years of the policy's issue. In the event of death of the insured by suicide within two years of the date of issue of the policy the company's liability under the policy was limited to return of the amount of premiums paid. By way of affirmative defense, the defendant company alleged that Mr. Rothman died 'as the result of suicidal, self-inflicted gunshot wound.' The jury determined the death was a suicide and returned a verdict for defendant.

The single question for our review is whether or not the trial court erred in refusing to admit into evidence a personalized check in the amount of $5, made payable to Olallie Lake Store and signed by Charles E. Rothman. The check was dated August 6, 1969, the date on which the insured died, and had not been negotiated. Plaintiff identified her husband's handwriting on the check, testified that it was found among his personal belongings at the time of death, and offered it as evidence that her husband had the intent to live--that he intended to go to Olallie Lake Store and that he expected to need money. There was no objection to the admissibility of the check other than to its relevancy and materiality. Defendant's objection was based on its argument that, due to the inability to ascertain when in fact the check had been written by the insured, the check had no probative value or bearing upon the issues. Because there was no evidence to prove that the check was actually written on August 6, 1969, the trial court held the check inadmissible as too speculative to be of probative value in determining whether or not the insured intended to commit suicide.

Charles E. Rothman was found dead from a bullet wound to his head at approximately 8 o'clock on the morning of August 6, 1969. His body was discovered in the front seat of his car, which was stopped with the engine still idling in the center of the road leading to Olallie Lake Resort in Oregon. Apparently, the car had proceeded only 30 feet after turning off the main road onto the road to the resort. The resort was approximately 250 feet off the main road. The car was loaded with camping equipment, an ice chest, food and a motor bike.

Two guns were lying on the front seat beside the body, one--a .45 caliber automatic enclosed in a holster, the other--a .44 magnum revolver which fired the fatal shot. The wound was not a contact wound, but was from a shot which had been fired at a distance from the head. The bullet struck a glancing blow to the right frontal area of the head after striking the right side of the insured's glasses. A test for nitrates on the insured's hand was negative although the test was not made until the following day after the body had been handled and moved.

Mr. Rothman had recently purchased the death weapon and had test-fired it approximately two weeks before his death. On...