Selover v. Aetna Life Ins. Co.

• Decision Date: 27 December 1934
• Docket Number: 25284.
• Citation: 38 P.2d 1059,180 Wash. 236
• Parties: SELOVER v. AETNA LIFE INS. CO.
• Court: Washington Supreme Court

38 P.2d 1059

180 Wash. 236

SELOVER v. AETNA LIFE INS. CO.

No. 25284.

Supreme Court of Washington

December 27, 1934

Department 2.

Appeal from Superior Court, King County; Wm. E. Huneke, Judge.

Action by Kate Selover against the AEtna Life Insurance Company. Judgment for defendant, and plaintiff appeals.

Reversed with directions.

William A. Herren, Edgar S. Hadley, and Eugene F Hooper, all of Seattle, for appellant.

J Speed Smith and Henry Elliott, Jr., both of Seattle, for respondent.

STEINERT Justice.

Plaintiff brought this action upon two accident insurance policies seeking to recover the principal sums thereof on account of the death of the insured. Trial by jury resulted in a verdict for defendant. Motions for judgment notwithstanding the verdict and for a new trial having been denied, judgment was entered, from which plaintiff appeals.

Some years ago the respondent insurance company issued to John W. Selover two policies of insurance, each in the principal sum of $10,000, insuring him against loss, resulting directly and independently of all other causes, from bodily injuries effected solely through external, violent and accidental means, suicide (sane or insane) not included. The policies were in full force and effect on July 15, 1932, the day on which the insured came to his death. Appellant was named as the death beneficiary in both policies.

Mr. Selover had, for many years, been engaged in business in Seattle as a fruit and produce broker. The business was incorporated under the name of J. W. Selover & Son, Inc.; all of its stock, except one share, being owned by Mr. Selover.

On the morning of July 15, 1932, Mr. Selover arose at about 6 o'clock, apparently intending to go to his place of business early, as he frequently did when shipments of fruit or produce were expected. He left the house and, it seems, went to the garage in which he kept his car. The garage was located several blocks away from his home. Shortly Before noon, Mr. Selover not having appeared at the office, one of the employees telephoned to Mrs. Selover and made inquiry concerning him. Surprised at the information that Mr. Selover had not gone to the office, Mrs. Selover, accompanied by her housemaid, went over to the garage. According to her testimony, when she arrived at the garage she heard the motor of the car running and saw that one of the garage doors was closed but not latched and that the other door was standing ajar about six or eight inches. One of the panes of the glass portion of one of the doors had been broken some time Before and had been replaced with a double-mesh screen. Throwing open the doors of the garage, she found Mr. Selover seated in the automobile directly behind the steering wheel, his left foot resting on the left-hand running board, his left hand grasping a wiping rag by his side, and his right hand lying in his lap. In response to her screams, a street car operator and two other men came to her assistance. The men pushed the car out of the garage, took Mr. Selover therefrom, and laid him upon the ground. A physician, the coroner, and the fire department were notified. The physician, upon arrival, administered a heart stimulant, but without any response. A lieutenant of the fire department used a pulmotor upon the body for about fifty-two minutes, but without success. The coroner, after an examination, pronounced Mr. Selover dead of asphyxiation from carbon monoxide gas.

The street car operator, the coroner, and the fireman were called at the trial as witnesses for respondent. The operator testified that upon his arrival at the scene Mrs. Selover was standing by the automobile, and that he heard her say, 'Why did you do it?' or 'Why did he do it?' He also testified that the windows of the doors of the automobile were down and that he observed that both garage doors dragged in opening and closing; further, that he did not see any rag in Mr. Selover's hand. The fireman testified that Mrs. Selover had told him, at the time, that Mr. Selover had been in the garage with the doors closed and the motor running, since 6:30 that morning. The coroner testified that he had talked to Mrs. Selover at the time of his call, and had inquired of her particularly about the doors; that she had said that the doors were closed. He also testified that he had tried the doors and found that, on account of their contacting the ground, it would be difficult for them to blow closed.

As may be expected, much of the evidence was directed toward the previous condition of Mr. Selover's health and financial affairs. From the evidence adduced, divergent conclusions are strenuously urged by counsel. There was evidence to the effect that, although Mr. Selover had been ill shortly Before his death, it was only of a temporary nature, that the night Before his death friends had visited at his home, and that he was then in good spirits. On the other hand, there was evidence that, due to financial worries, Mr. Selover was on the brink of nervous prostration. As to his finances, there was evidence that, although the business had been falling off, and although Mr. Selover was then in debt, yet the conditions were not such as would drive a normal man to distraction or furnish a motive for suicide. On the other hand, there was evidence to the effect that Mr. Selover required from five to six hundred dollars a month for his personal and household expenses; that he kept but one bank account for his business and his personal affairs; that his account with the company was overdrawn to the extent of $6,700; that certain shipments on consignment, amounting to about $278, had not been paid for; that there was owing to an associate in the business, who worked on a profit-sharing basis, the sum of $1,150; and that for some time past the business had made no profit whatever.

The assignments of error may be grouped under two heads: (1) The refusal of the court to grant the motion for judgment notwithstanding the verdict. This assignment is rested upon appellant's contention that there was no evidence 'whereby the jury could base a finding of death other than by accidental means.' (2) Error in the giving of certain instructions and the refusal to give certain others, requested by appellant. These assignments furnish the basis for appellant's motion for a new trial.

As to the first assignment, suffice it to say that our consideration of the record convinces us that the question whether death was accidental or suicidal was, under the evidence, a matter for the jury to determine. The motion for judgment notwithstanding the verdict was therefore properly denied.

The other group of assignments presents more difficult questions.

After instructing the jury that the burden was upon the plaintiff (appellant) to show by a fair preponderance of the evidence that the insured met his death by accidental asphyxiation from carbon monoxide gas, the court gave its instructions No. 3 and No. 7, as follows:

'No. 3. You are instructed further that the burden is not upon the defendant to show that the insured committed suicide, but the burden is upon the plaintiff to show that he met his death from accidental means as alleged, and if there is evidence tending to show that the insured took his own life and such evidence, if any, causes you to hesitate and to be in doubt as to the cause of death, then your verdict would have to be for the defendant.'

'No. 7. I instruct you further that presumption of law is against suicide but that such presumption falls to the ground when there is any competent evidence tending to show that death was caused by other means. If, therefore, you find that there is no evidence in this case tending to show that the deceased intended to commit suicide, then I instruct you that the presumption of law is that his death was accidental, but if there is evidence tending to show that the deceased intended to and did commit suicide, then this presumption does not apply and the burden would be on the plaintiff to show that his death was caused by accidental means and not by suicide.'

The appellant requested instructions to the effect that the burden was upon respondent to show by clear and satisfactory evidence that death was the result of suicide, and that the burden was not sustained by proof of motive alone with circumstances probably indicating suicide, if from the evidence there was equal probability that death was accidental.

The question presented by the court's instructions and those requested by appellant relate to the burden of proof and to the force and extent of the presumption against suicide. Respondent contends that the burden of proof lay upon appellant, throughout the case, to show that death was accidental. Appellant contends that, inasmuch as death through natural causes was not involved, and since the only question was whether death was accidental or was the result of suicide, and appellant having made a prima facie case of accidental death, the burden was upon respondent to establish suicide. Appellant further contends that respondent must meet that burden by such evidence as excludes, with reasonable certainty, every hypothesis of death by accident.

Respecting the question of the burden of proof and the effect of the presumption of law, we may say at the outset that, while judicial discussion of these subjects, in cases of this kind has been almost limitless, there is a most serious and irreconcilable conflict in the decisions. To review here the many pertinent cases would carry this opinion to an inordinate length and in the end would be profitless, for it would do no more than to substantiate our statement that the holdings are in hopeless conflict. We will therefore do no more than to give a general statement...