Opinion
Opinion delivered December 15, 1930.
1. APPEAL AND ERROR — CONCLUSIVENESS OF VERDICT. — A verdict will not be disturbed on appeal if supported by any substantial evidence. 2. APPEAL AND ERROR — CONCLUSIVENESS OF VERDICT. — In determining whether a verdict is supported by any substantial evidence, the strongest probative force will be given to the testimony and reasonable inferences deduced therefrom favoring the verdict. 3. TRIAL — JURY QUESTION. — Where reasonable men may draw different conclusions from the testimony, the issues should be submitted to the jury. 4. EVIDENCE — PRESUMPTION. — The presumption against suicide, though strong, is rebuttable. 5. INSURANCE — WHEN PRESUMPTION AGAINST SUICIDE OVERCOME. — Where the evidence is so clear and conclusive as to overcome the presumption of suicide and leave no other reasonable basis for a jury to arrive at any other conclusion than that of a suicide, the insurer is entitled to a directed verdict on the defense of suicide. 6. INSURANCE — REBUTTAL OF PRESUMPTION AGAINST SUICIDE. — In an action on a life insurance policy, evidence held to overcome presumption against suicide, warranting a directed verdict for insurer.
Appeal from Lafayette Circuit Court; Dexter Bush, Judge; reversed.
Searcy Searcy and Wynne Miller, for appellant.
King Whatley, J. H. Landes and McKay Smith, for appellee.
STATEMENT BY THE COURT.
Appellant insurance company issued and delivered on the 25th day of September, 1928, its insurance policy No. 48,728, insuring his life in the sum of $10,000, to John W. Miller, sheriff, payable to his executors, administrator or assigns. The policy contained the following provision:
"In case of suicide of the insured, whether sane or insane, within one year from the date of this policy, the liability of the company shall be limited to a sum equal to one-tenth of the face of this policy."
On the 3rd day of September, 1929, John W. Miller was killed, and suit was brought by the administrator of his estate, appellee, to collect the insurance.
The appellant answered admitting the issuance and delivery of the policy to Miller as alleged, and that he died on the 3rd day of September, 1929, alleged that his death was due to self-inflicted wounds with suicidal intent, and that it was only bound to the payment, under the provisions of the policy, the insured having committed suicide, of the sum of $1,000, which it tendered to appellee and offered to pay into the registry of the court in settlement and satisfaction of all liability under the policy.
Appellee filed a reply in which he denied that the death of the insured was due to gunshot wounds self-inflicted with suicidal intent, and that the insurance company was liable only for $1,000 as claimed; and alleged its liability for the full amount of the policy.
The record shows that the deceased, John W. Miller, was sheriff of Lafayette County; that he was short in his accounts with the State for taxes collected; and that his dead body was found lying upon a bed in the sample room of a garage building on the alley about 40 feet from the rear of his home and a little east thereof about 6:30 or 7 o'clock on the morning of September 3, 1929.
The bed was in the northeast corner of the sample room, the body lying somewhat obliquely across it, the head to the north and a little east, the feet towards the south and crossed about the center of the bed. The body was clothed in an undershirt and a pair off blue serge trousers, and the shoes had been removed and placed side by side on the bed near the legs, between the knee and ankle on the east side of the body. There were two bullet or pistol shot wounds in the forehead, one in the center and the other to the right side of the frontal median line about one and one-half or two inches apart. Clutched in the right hand was a .32 caliber revolver lying across the stomach, with two empty shells in the cylinder. The pistol had formerly belonged to the deceased wife of Miller, and had been in his home and used by him since her death. The room in the garage where the body was found on the bed had been used as a sample room and was separated from the garage by partition walls, in which near the bed was a door securely closed and fastened. There were three windows in the sample room, one on the east side, one on the west next to the residence and one on the south end, all about 3 or 4 feet from the ground. A pistol shot was heard in the early morning about 6 to 6:30 of that day. Nora Lee, a daughter of Miller, and Miss Vaughan, a relative of the family, were both awakened in the residence by the sound. The daughter rushed to the rear porch of McClendon's home, a neighbor who lived about 100 feet from the Millers. On the rear porch she called repeatedly for William McClendon, and Lay McClendon, Jr., hearing the distress call, rushed to the rear porch, and, while she was explaining the trouble to him, they heard a second shot fired from the direction of the sample room, and immediately saw Miss Vaughan running from the sample room towards the house screaming and calling for Nora Lee. They saw her about 10 feet from the sample room when the second shot was fired, and Nora Lee almost collapsed into a chair. Lay went to his bedroom for his shirt and told his father that something had happened up to the Miller house and ran immediately to the sample room. He made unsuccessful efforts to enter through the door on the east side, and then went around into the garage and attempted to go through the door in the partition wall, which was so fastened that he could not get in. He then went back to the screen door on the west side facing the direction of the Miller residence and got in. He found the body of Miller upon the bed with the pistol grasped in his hand as already described. He then unfastened some of the windows and opened them because of the labored breathing of Miller, thinking he needed some fresh air.
Dr. Youmans was the first physician to reach the body. He made an examination and discovered the wounds as already said. The bullet inflicting the wound to the right did not penetrate the skull and was removed by him. The other crashed into the brain causing instant paralysis and immediate death. The bullet that did not penetrate the skull was fired first, and the doctor discovered a little spot of powder burn around the center wound. Both bullets were fired apparently straight in. The one that penetrated the skull showed that it was fired straight into the head.
There were no indications of any struggle in the room where the body was found. There were but two small spots of blood on the floor and some on the bed near the head, but the wound bled freely when the doctor raised the head. Two or three physicians examined the body, and all agreed that the shot into the brain would cause instant paralysis, and that probably the bullet that did not penetrate would have caused unconsciousness temporarily. One said however that, although the shock would have been great, it would not necessarily have caused unconsciousness.
Miller had retired in his room in the house, in which two or three of the children slept, on that evening and before the relative, who was visiting, had retired to her room down across the hall. One of the young ladies, his daughter, heard a noise during the night and thought it was her father calling the younger son, Miller, Jr. No one saw him leave the house and go into the sample room, and there was no evidence indicating that any one else had entered or left the room where the body was found before young McClendon entered it.
There was some testimony tending to show that the deceased for some little time before the shooting had been indifferent, depressed almost continually, blue and gloomy. Although many of his friends did not regard him abnormal or his mind unsettled, some of them attributed this condition to the fact that he had been hurt in an automobile accident some month or two before the day of his death. There was some other testimony tending to show that he had made some arrangements for attending to certain official business immediately after the day of his death and the week following. He was engaged to be married, it was shown, to a lady in Shreveport, La., whom he frequently visited down there and who came to and visited in his home and who was present and remained in the office on the morning he was sworn in as sheriff.
He expected to be called on immediately for final settlement by the State for the taxes he had collected and was unable to pay. Two letters, unsigned, written by him to the Shreveport woman and inclosed in an envelope addressed to her were procured from her at Shreveport by the claim agent of the company, who was accompanied by a former sheriff of an adjoining county who was personally acquainted with her. This envelope was not mailed although addressed to her, and she came immediately to the residence of Miller upon the advice of his death and attended his funeral there. The letters were shown by many people to have been in his handwriting. They expressed the great love of the writer for Miss Trussell, solicitude about his children, whom he hoped she would feel kindly towards and be helpful to, his regret that his shortage was to be exposed before the 20th or 25th of September, and an unmistakable intention to kill himself. Extracts from the letters are as follows:
"My darling sweetheart, you made me do the hardest thing tonight that I ever done when you made me tell you my troubles * * *."
"Oh, my God, darling, Georgia acted just like it did not concern her at all. Darling, she is my child and I love her, but, my God, how can she act that way, when her daddy's life is at stake * * *."
"Nora Lee and all is asleep, no one woke up yet. Nora, poor thing, I guess she is wore out, God knows I love her for what she done today, and, will you, please, tell her for me. Well, doll, I left you for my last time tonight, and am telling you goodbye forever and ever more and sealing it with love and kisses."
"Monday Eve, September 2, 1929.
"My only darling, it is hard to die and leave you and my darling babies, oh, God, how hard, no one will ever know, and, my poor old mother, God bless all of you. Darling, there is about 3,100 or 3,200 dollars short in all and $1,161 got to come tomorrow * * *."
"Darling, oh, God, please don't go back on my darling little babies and my old mother, please come and see them and write to them for old-time sake, won't you, darling. Darling, I love you, oh, God, how I love you, and, darling, how it hurts me to have to do you this way * * *."
"And will you please not go back on them, darling, my sweet, beautiful doll, I know you won't do that. * * * Just when we could have a little happiness, everything happens at one time. * * * If they would only let me live till 26 more days or till the 26th or 27 day of September, I could pay every cent I owe and have money left for my loved ones, and, that was what I had in hope, and, darling, my sweet little doll, I believe if ever a man got forgiven for tang his own life, I believe I have been and I want you to pray for me more and harder than you have been and that is saying a whole lot. * * * It is hard to quit writing to the only one I love and death looking in my face. * * * Please try and not think too hard of me, and love my poor little innocent babies for me. I love you, sweet one, I love you till, oh, God, it is killing me to have to leave you, but I will leave you a million kisses and take two a day, one in the morning and one at night when you go to bed, won't you, darling one of my broken heart."
The court instructed the jury giving some instructions objected to and refusing appellant's requested instruction for a directed verdict in its favor that appellee could not recover more than the amount, one-tenth of the face of the policy, provided by the terms of the policy in the event of suicide of the insured within one year from the date of the policy, and from the judgment on the verdict for the whole amount of the policy with penalty and attorney's fees the insurance company prosecutes the appeal.
(after stating the facts). Appellant insists that the court erred in reusing to give its peremptory instruction directing a verdict in its favor and the contention must be sustained.
The rule has often been stated that this court will not interfere with a verdict supported by any substantial evidence, and that in arriving at that conclusion the strongest probative force will be given to the testimony and the reasonable inferences deducible therefrom favoring the party for whom the verdict is rendered. If the facts are such that men of reasonable intelligence may honestly draw therefrom different conclusions on the question in dispute, then the issues are properly submitted to the jury for determination, and in such cases the court should not substitute its judgment for that of the jury. Harris v. Bush, 129 Ark. 369, 196 S.W. 471; Guardian Life Ins. Co. v. Dixon, 152 Ark. 597, 240 S.W. 25; Grand Lodge A. O. U. W. v. Banister, 80 Ark. 190, 96 S.W. 742; Mutual Life Ins. Co. of N.Y. v. Raymond, 176 Ark. 883, 4 S.W.2d 536.
An eminent annotator in discussing the right of an insurer to a directed verdict upon the issue of suicide makes the following statement of the law relative to the rule governing trial courts in suits upon insurance policies when the defense of suicide is relied upon, to-wit:
"Although in all jurisdictions the courts apparently recognize the existence of a strong presumption against suicide, the presumption is rebuttable, and it is held that an insurer setting up suicide of the insured as a defense to a recovery on a policy may be entitled to a directed verdict in its favor on the issue of suicide, if the evidence produced is so clear and conclusive as to overcome the presumption and leave no reasonable basis for a jury to arrive at any other conclusion than that of suicide. Under such conditions the issue of fact is no longer one for the jury to speculate on and should be decided by the court by means of a peremptory instruction to render a verdict for the insurer.
"So where all the evidence produced on the trial overcomes the presumption, convincingly indicates suicide, and is inconsistent with accident or murder, the insurer is entitled to a directed verdict on the defense of suicide." 37 A.L.R. 171.
This rule appears to have been adopted and followed by the majority of courts, both State and Federal, and our own court has announced the rule and its adherence thereto in Industrial Mutual Indemnity Co. v. Watt, 95 Ark. 456, 130 S.W. 532, and in Mott v. Sovereign Camp, 155 Ark. 259, 244 S.W. 733.
The insured either killed himself purposely or by accident, or was killed by some one else. The undisputed testimony shows he was continually worried and harassed about existing conditions in his office, that he was depressed at all times, not to say gloomy, that he was listless and indifferent about the conduct of his office, knew that he was short in his accounts, was unable to make settlement with the State for the revenues collected, and that his shortage would be immediately discovered. Upon returning from the last visit to his fiance at Shreveport, he wrote the letters expressing a fixed determination to kill himself, saying that he was then looking into the face of death, which he regarded as most horrible, expressed the belief that he would be forgiven for killing himself, and wrote resignedly as though his determination was fixed and irrevocable. The undisputed testimony shows that he was in possession of the pistol, which had belonged to his former wife, with which he was killed, and still clutched it in his right hand when his body was discovered after he had been shot therewith. It was impossible for him to have killed himself accidentally, the second shot fired, the fatal one, occurring about five minutes after the firing of the first, the bullet from which did not penetrate the skull. Evidently the shots were fired after he had lain down on the bed with the pistol pressed against his forehead. The physicians stated that he would not have been able to get into the bed and assume the position he was found lying in had he been standing up during the firing of either of the shots. One of them stated that the first shot might not have rendered him unconscious, and, although the others testified that it would, they said it would only have been temporarily so. There was time enough between the firing of the shots for him to have recovered from the shock of the first sufficiently to press the pistol against his head and fire the second shot in accordance with his fixed determination to kill himself. There was no evidence whatever of the presence in the room of any one else when the shots were fired or indicating that they might have been fired by some one else on the outside of the building. There was no evidence whatever indicating the presence of any one in the vicinity who would have attempted to kill the insured, and it is unbelievable, in view of human experience, that one who sought to murder the insured would fire the first shot into his head and wait five minutes before firing the last. Although the testimony showed that the sheriff had been active in enforcing the prohibition law and had received one threatening letter from a particular township in his county if he should come down there for that purpose, there was no particular threat shown to have been made by any one who desired his death or might have attempted to kill him.
It is true this woman, who received the letters, written the last night of his life, expressing his undying affection for her and a fixed determination to kill himself, did not testify, but the proof was conclusive that the insured wrote the letters, and they were of no less probative value, having been shown to have been written by him, than if this woman "he loved," who delivered them to the insurance company had appeared personally in court and testified to the circumstances under which she received them.
The physical facts, as already said, are not consistent with the theory of an accidental killing which could be conceived of and cannot be reconciled with any manner of killing other than suicide. There is no suggestion in the record of any facts from which a reasonable inference might be taken that the insured met his death at the hand of another through foul play. The presumption of accidental killing was overcome by the undisputed facts and circumstances, and the court should have directed a verdict for appellant in accordance with its request.
The judgment is accordingly reversed for failure to do so, and judgment will be rendered here for the $1,000, one-tenth of the face of the policy, in accordance with the terms thereof and the admission of appellant's liability therefor. It is so ordered.
HUMPHREYS, MEHAFFY and BUTLER, JJ., dissent.
I confess that much of the evidence, if not indeed the preponderance, sustains the conclusion reached by the majority that the wounds causing the death were self-inflicted. But there are other circumstances which cast doubt upon this and which, under our settled rules of practice, I think sufficient to constrain us to uphold the finding of the jury. In the first place, the letters of September 1st and 2d, written by the deceased to his fiance are confessedly the strongest evidence tending to establish suicide, but it will be noted that, although the letter of September 2d was written on the evening of that day and in that letter the writer stated that he would kill himself that night, he did not in fact do so — neither that night, the next day, nor the night following. Notwithstanding that declared intention, he was actively engaged all the day following in the discharge of his duties, and two nights and a day passed before he was killed. Men frequently express the intention of doing something and then fail to carry that intention into execution. Therefore the jury might have reasonably concluded that, in as grave a matter as the taking of one's own life, where the intention is not carried speedily into execution and there is a reasonable lapse of time, the deceased might have reconsidered.
It is argued in the majority opinion that no one could have entered the room in which the deceased was found dying. I think the testimony does not show that fact conclusively, and, while the doors were closed, they were not fastened in such a manner as to necessarily indicate that they were fastened immediately before the killing, for the door leading into the alley might well have been fastened by one departing from the room and pulling it to after him. The fact that the deceased had two bullet wounds in his head, one of which, according to practically the uncontradicted testimony, would have rendered him unconscious, and the other that would cause immediate and complete paralysis, might have led the jury to believe that the deceased could not have fired both shots and that therefore he fired neither. Certainly, if the wounds were self-inflicted, the one that entered the brain and caused instant and complete paralysis could not have been fired before the bullet which entered the outer layers of the skull and fastened against "the second table" of the skull. There is abundant testimony to show that this last-mentioned bullet produced such a shock as to render the deceased profoundly unconscious, and, notwithstanding the testimony of the experts who stated that this unconsciousness would not endure longer than five minutes, the jury, from the testimony of others and judging the wound and its consequences in the light of common sense, might have reasonably inferred that the unconsciousness endured for a longer time and that the deceased could not have fired the shot into his brain which killed him.
Only one witness testified that there were any powder burns on the face or forehead of the deceased, and his statement was not a positive one. There were nine witnesses, all of whom made examinations immediately after the discovery of the body of the deceased, and all stated that there were no powder burns or discolorations from powder on the face or forehead of the deceased. A number of witnesses testified that, from their observation and experience, powder burns would appear where the pistol was held against the forehead or within eighteen inches of it at the time the pistol was fired. One witness experimented on the body of a freshly plucked fowl by firing shots into its body with a pistol muzzle pressed against it and from six to eighteen inches away, and he testified that each of the shots caused powder burns to appear on the body of the fowl. There was some testimony that a pistol fired with the muzzle touching the forehead would not leave any powder burns, but this was strongly disputed.
Another significant fact appearing from the evidence was that the pistol which was taken from the hand of the deceased was examined by two witnesses on the same day of the killing, and one of these witnesses appears to have been a disinterested witness. He testified that he examined the pistols by looking down its barrel with a white paper placed at one end and by this means could see down the barrel. He stated that there were rust stains for a part of the way and the remainder was bright, and those familiar with the use of firearms testified that this condition would not appear if the pistol had been recently fired.
The deceased was found lying on his back, and, as one of the wounds caused instant and complete paralysis, he must have been in that position when the shots were fired. Both shots went "straight in," and one who experimented testified that in order for the woods to have been self-inflicted the pistol must have been held in a most awkward and unusual manner. Another circumstance was that when found the deceased lay upon his back with his hand naturally grasping the pistol and lying upon his stomach. It was argued that if he fired the shot that caused immediate and complete paralysis, his hand would have fallen by the force of gravity on his breast, and this the jury might have inferred.
When it is remembered that there is a strong presumption of law against suicide and that fact must be affirmatively shown by direct proof, or from circumstances from which no other reasonable inference could be drawn, and when the further rule is borne in mind that we are irrevocably committed to the doctrine that we will not interfere with verdicts supported by any substantial evidence, and in arriving at whether the verdict is supported by substantial evidence the strongest probative force will be given to the testimony and every reasonable inference deducible therefrom in favor of the party receiving the verdict, I must respectfully dissent to the conclusions of the majority and to the order of reversal and dismissal.
I am authorized to say that Messrs. Justices HUMPHREYS and MEHAFFY join in this dissent.