United Fidelity Life Ins. Co. v. Adair

• Decision Date: 25 June 1930
• Docket Number: No. 1325-5430.,1325-5430.
• Citation: 29 S.W.2d 944
• Parties: UNITED FIDELITY LIFE INS. CO. v. ADAIR.
• Court: Texas Supreme Court

29 S.W.2d 944

UNITED FIDELITY LIFE INS. CO. v. ADAIR.

No. 1325-5430.

Commission of Appeals of Texas, Section A.

June 25, 1930.

Error to Court of Civil Appeals of Seventh Supreme Judicial District.

Action by Mrs. Cassie Adair against the United Fidelity Life Insurance Company. Judgment for plaintiff was affirmed by the Court of Civil Appeals [29 S.W.(2d) 940], and defendant brings error.

Affirmed.

Thompson, Knight, Baker & Harris, of Dallas, and Bledsoe, Crenshaw & Dupree, of Lubbock, for plaintiff in error.

Bean & Klett, of Lubbock, for defendant in error.

CRITZ, J.

This suit was brought in the district court of Lubbock county, Tex., by Mrs. Cassie Adair, surviving wife of Eugene T. Adair, to recover $4,500 with interest, and the statutory penalty and $1,500 alleged to be a reasonable attorney's fee. The policy was issued November 20, 1925, and the insured died March 7, 1926. The insurance company filed its amended answer contesting the same on the ground of self-destruction or suicide on November 1, 1926.

The policy contained the following provision:

"If the insured whether sane or insane, shall die of self-destruction within one year from the date hereof or before the second annual premium becomes due the amount payable hereunder shall be the amount of premiums actually paid under this policy."

Trial was had in the district court before a jury, and at the close of the testimony the insurance company presented a motion for peremptory instruction in its favor on the ground that the evidence showed, as a matter of law, that the insured intentionally killed himself within less than one year from the issuance of the policy. This motion was overruled by the court. The insurance company also requested two special charges which in effect amounted to peremptory instructions, both of which were refused and exceptions duly reserved.

The trial court then submitted the case to the jury on special issues, and in response to these issues the jury found:

That the insured did not intentionally kill himself, and that $1,000 was a reasonable attorney's fee.

On the above verdict the trial court entered judgment for Mrs. Adair for the face of the policy, plus 12 per cent. penalty, and $1,000 attorney's fees and interest, aggregating $6,880. This judgment was affirmed by the Court of Civil Appeals for the Seventh District at Amarillo. The case is now before the Supreme Court on writ of error granted on application of the insurance company.

The case is presented in the Supreme Court under several assignments of error, but they all amount to one contention, which is that the undisputed evidence in the trial court establishes, as a matter of law, the fact that the insured committed suicide at such a time as to limit the right of recovery to the amount of premiums actually paid. In order to pass on this contention, we must of necessity make a very extended statement of the facts and circumstances leading up to and surrounding the death of the insured.

Insured had for several years been engaged as an automobile dealer at Lubbock, Tex. In the operation of his business he sold automobiles and frequently took notes as part consideration secured by mortgages against such automobiles. These notes and mortgages were disposed of to different parties, principally to finance companies engaged in the business of buying such paper. For some time prior to his death the insured had engaged in the practice of taking duplicate and sometimes triplicate mortgages on automobiles which he had for sale. He would sell these different mortgages on the same car to different parties and finance companies. In this connection he would usually sell a car to one of his employees, who would execute notes and a mortgage on the car, and said notes and mortgage be disposed of to some finance company; and when a bona fide purchaser was found for the same car the notes and mortgage of this bona fide purchaser would be taken and these notes also negotiated, usually to some finance company. These duplications and fraudulent transactions had been discovered shortly prior to the death of the insured, and representatives of the holders of these fraudulent notes had interviewed the deceased and threatened him with criminal prosecutions. Insured had admitted to the representative of one of the finance corporations holding some thirteen or fourteen thousand dollars of these fraudulent papers that he had been doing wrong and asked that he be indulged a reasonable time to straighten up the matters. At this time several of the insured's creditors were pressing him for their money.

On Wednesday preceding his death insured, in company with his business partner, made a trip of several hundred miles by automobile from Lubbock, Tex., to El Paso, Tex., in an effort to secure money to discharge these pressing obligations. It seems that this trip was futile. Before leaving for the trip to El Paso, insured borrowed from a city policeman a 45 Smith & Wesson double-action Army model six-shooter, or pistol, which he took with him on his trip, advising the officer that he would be driving strange roads at night and wanted a pistol for that reason. Insured returned from El Paso to Lubbock about 4 o'clock on the following Sunday morning. While he was on this trip, one of his creditors made a complaint against him, charging the offense of felony swindling based on one of the fraudulent mortgages above mentioned. When insured reached home he was tired from an all-night drive, and his wife asked him if he wanted to take a bath. He said he would and took his suitcase, which he had carried on the trip to El Paso, into the bathroom, set it down, and then decided that he was too tired to bathe and went to bed and to sleep. About an hour later a deputy sheriff of Lubbock county, Vernice Ford, in company with a Mr. Settle, went to the insured's home with a warrant for his arrest on the complaint filed. When the officer and Mr. Settle arrived at the insured's home, Mr. Settle went to the back door, and the deputy knocked at the front door, and when Mrs. Adair came in response to the knock the deputy asked to see her husband. Mrs. Adair asked him to wait until morning, which the deputy declined to do. The officer was then admitted by Mrs. Adair and invited and accompanied to the room where insured was in bed. The insured was then informed that the officer had a warrant for his arrest. He immediately got up, went to the front room, read the warrant, and began dressing and talking to the officer. He completed dressing in the living room, including his hat and overcoat, and then asked permission to kiss his wife and children good-bye, which was allowed. After Adair had kissed the children and told them to be good, the officer heard a sound in the neighborhood of the bathroom as though a glass was taken off a shelf, and the water turned on a little; the officer then heard a click like a glass was set down, and in a second he heard the report of a pistol coming from that part of the house. The officer went immediately to the bathroom door, which was almost closed, and on pushing it back saw the insured lying on the floor of the bathroom resting on his right arm and elbow. The 45 six-shooter, the barrel of which was still warm and smoking, was lying close to insured's right hand. The insured made no answer when accosted by the officer. The odor of gunpowder could be detected in the room at that time. The pistol had one chamber discharged and the other five loaded. A doctor was called, and the sheriff and undertaker also came in a few minutes. The bathroom was approximately 6½ feet by 7 feet, the lavatory on the north, the bathtub on the east, the commode on the south, and the door to the north of the center of the west side of the room, with the shutter hinged on the north. There were two windows in the bathroom, one on the east side and one on the south. An examination made a few minutes after the discovery of the insured's body showed that the window shade was down. There was a bullet hole through the window shade. An examination of the bullet hole, in an effort to determine the range of the bullet, showed that the bullet went through the window and shade practically on the level. There was also a hole through the window screen of the window also. The shattered glass was located between the window pane and the screen on the outside of the window. The fabric of the curtain extended towards the outside. The wires in the screen were bent outward. There were little blood stains on the inside of the window curtain, near the bullet hole.

It was also shown by the officer that he was familiar with the use of guns and pistols, and that a pistol could be accidentally discharged while loading it or dropping it on some object or striking the hammer against some object or by pulling the trigger. It was also shown by this officer that all manner of accidents happen with firearms; that men kill themselves accidentally with firearms; that men sometimes carry guns with the hammer on the shell; that a man standing up and examining a gun could accidentally drop it, grab for it, and the gun hit some object and be discharged, and in that way shoot himself in the body. It was also shown by this officer that Adair did not resist arrest in any way and did not refuse to go with the officer.

Mr. Settle, who stood just outside the window of the bathroom, testified among other things that he saw Adair enter the bathroom, turn north to get a drink of water, heard the water running in the lavatory, saw Adair push the bathroom door partly closed to get to the water. After he heard the water running, insured turned around and pulled down the window shade on the south side of the bathroom, and in a few seconds thereafter the witness heard the report of a pistol, and the noise of the glass shattered by the shot, and as quickly as he could went to the front door, and on into the bathroom. This witness said that he...