152 Ark. 597 | Ark. | 1922
(after stating the facts). Each of the policies of insurance sued on contained a clause rendering the policy void in the event of the self-destruction of the insured.
The defendants assign as error that the evidence fails to sustain the finding of the jury that the insured did not commit suicide. Before entering into a discussion of the evidence on this question, it is well to state the principles of law which should govern the jury in reaching its verdict, and which must govern us in testing the legal sufficiency of the evidence to, support the verdict.
In the first place, there is a presumption against suicide, and such presumption stands until overthrown by evidence in favor of the insurer. Grand Lodge of A. O. U. W. v. Banister, 80 Ark. 190; Aetna Life Ins. Co. v. Taylor, 128 Ark. 355; Columbian Woodmen v. Matlock, 144 Ark. 126; and Watkins v. Reliance Life Ins. Co., ante p. 12.
Under the settled rules of practice in this 'State, to disturb a verdict on appeal, we must hold that the finding of the jury is against the uncontradicted' evidence and every legitimate inference deducible therefrom. The reason for the rule is, first, that the jury have weighed the evidence and found the verdict; second, that the trial judge who also heard the testimony from the mouths of witnesses and weighed the same, has, by overruling the motion for a new trial, given the approval of his legal judgment to the verdict; and third, this court can not have the benefit of seeing and hearing the witnesses and observing them while testifying, but only reads the substance of their testimony as it appears from the record. St. L. S. W. Ry. Co. v. Ellenwood, 123 Ark. 428. In this case, not only the jury found against suicide, but the verdict has the approval of the trial court. As we have already seen, there is a presumption against suicide, and the burden of establishing self-destruction by a preponderance of the evidence is upon the insurer. The question presented for our determination is whether or not the evidence for the insurance companies has overcome this presumption as a matter of law. We cannot say that the verdict of the jury was the result of conjecture merely. It is true that, according to the testimony of Earl Buchanan and A. L. Burford, Dr. Dixon committed suicide; but it can not be said that their testimony is undisputed, and therefore conclusively establishes the fact of suicide. There was direct proof that there were no powder burns observed on Dr. Dixon’s head near the wound. This condition is met by the defendant’s declaration that their proof shows that the cartridges used were loaded with smokeless powder, and that this kind of powder would not cause powder burns.
Again, they say that the blood flowing from the wound caused the powder burns to be effaced. The trouble about this position is that the jury did not accept this explanation, but believed the witnesses for the plaintiffs on this point. An undertaker of twenty years’ experience said that, in cases where the shot was fired by the person killed, there were always powder burns and sometimes scorched or blistered places. Other witnesses testified that they fired bullets from the pistol found in the hands of Dr. Dixon at the body of a dressed chicken; and that, when fired at close range, the body of the chicken showed powder burns. Again, other witnesses fired the pistol at a clean white cloth at a close range, and the cloth showed powder burns.
Then, too, a lawyer who had an office directly under the office of Mr. Burford testified that after the first two shots were fired, he heard a noise as if furniture of some kind was being moved about in the room before he heard the third shot.
The jury might have inferred from this that there was a scuffle of some kind going on in the room after the first two shots were fired and before the third one was fired. It is true that Buchanan and Burford testified that such was not the case. But we must deal with legal inferences that the jury might draw from the evidence as a whole.
Then, too, the jury might consider the fact that there was no motive for suicide on the part of Dr. Dixon, except the fact of his quarrel with Vaughan and Buchanan, and his shooting Vaughan in hot blood.
Again, the jury might consider the fact that four bruises were found upon the face and head of Dr. Dixon. It is true, as suggested, that these might have been produced by his fall, but this is not conclusive.
While Buchanan testified at the trial that he saw Dixon shoot himself, he also testified that he was very much excited at the time. Witnesses for the plaintiffs testified that at the coroner’s inquest Buchanan testified that he was down on the floor when the third shot was fired and did not see Dr.’Dixon until he fell. Under these circumstances it cannot be said as a matter of law that the testimony of Buchanan and Burford is so consistent with itself that it overcomes the circumstances tending to contradict it.
We cannot say, as a conclusion of law, that the evidence is not legally sufficient to support the verdict, when viewed in the light of all the surrounding circumstances and the presumption against self-destruction. Where reasonable men may differ as to the legal sufficiency of the evidence, the jury, and not this court upon appeal, must determine the issue.
It is also assigned as error that the court excluded from the jury the proceedings of the coroner’s inquest which contained the finding that Dr. Dixon came to his death by a gunshot wound self-inflicted. This court has held that where, in an action against a life insurance company to recover for the death of the insured, the defense is that he committed suicide, the duly certified verdict of a coroner’s jury is not admissible for the purpose of proving such defense. American Natl. Ins. Co. v. White, 126 Ark. 483.
It is also insisted that, inasmuch as the minutes of the coroner’s inquest were exhibited with the proof of death, the same should be admitted' on the trial of the issue in the present case as in the nature of an admission by the beneficiaries that the insured committed suicide. There is nothing in the policy which requires the proceedings at the coroner’s inquest, including the verdict of the jury,to he exhibited with the proof of death, and under the holding in the case last cited, such evidence is not admissible in an action by the beneficiary to recover on the policy.
We are in effect asked by counsel to overrule that case, but we decline to do so. The case of Aetna Life Ins. Co. v. Milward, 118 Ky. 716, is cited in support of it. That case is also reported and annotated in 68 L. R. A. 285.
After a thorough discussion of the question the annotator says that a consideration of the whole matter leads to the conclusion that tiie weight of authority in the United States is against the reception of the verdict of the coroner’s jury. This case is also reported in 4 Ann. Gas. 1092, and in a note to the case it is said that the holding of the main case is in accord with the weight of authority.
The case from our court of Cole v. State, 59 Ark. 50, lends no support to the contention of counsel for the defendants. That was a criminal proceeding in which Cole was present at the coroner’s inquest and was suspected of being guilty of the homicide. Subsequently he was indicted for the murder of the deceased, and on his trial the court held that it was competent for the State to show what he had téstified to at the coroner’s inquest because he was a patty to it.
The proof of the death of Dr. Dixon was in all respects complete without the minutes of the coroner’s inquest. Its contents form no part of the representations of the claimants; the statements therein contained were not sworn to by them, nor presented as worthy of belief. No issue was raised by the insurance company as to the fact of Dr. Dixon’s death,and the claimants were in no respect bound by the minutes of the coroner’s inquest.
It is also insisted that the minutes of the coroner’s inquest were admissible to show what Earl Buchanan testified to in that proceeding. We do not agree with counsel in this contention. Earl Buchanan was a witness for the insurance companies on the trial of this cause, and related the circumstances surrounding the killing as he saw them. Ilis testimony at the coroner’s inquest could not he read to corroborate his testimony given at the trial. It is true that certain witnesses at the trial testified that Earl Buchanan stated at the coroner’s inquest that he was down on the floor and did not see Dr. Dixon at the time the third shot was fired, and only saw him as he was falling to the floor after it was fired. It will be remembered that Buchanan testified on the trial of this case that he saw Dr. Dixon point the pistol at his own head and fire it. It was competent for the plaintiffs to introduce the testimony in question for the purpose of contradicting the testimony given by Earl Buchanan at the trial of this case. Earl Buchanan denied having testified before the coroner’s jury that lie did not see Dr. Dixon point the pistol at his own head and fire it. It was not competent to corroborate his testimony in this respect by what he testified to at the coroner’s inquest. This would have the effect, not only of bolstering his own testimony, but all parties concerned in this trial would be bound by what he testified to in that proceeding. It was a proceeding in which none of the parties in the present case were directly interested.
It is next insisted that the court erred in fixing the statutory penalty and attorney’s fee against the insurance companies. We do not agree with counsel in this contention. In Arkansas Ins. Co. v. McManus, 86 Ark. 115, the court held constitutional our statute providing that in all cases where loss occurs and the insurance company liable therefor shall fail to pay the same after due demand made therefor, such company shall be liable to pay to the holder of such policy in addition to the amount of the loss, twelve per cent, damages, together with all reasonable attorney fees. The court sustained the statute as a penalty which the Legislature might impose under the police power by which it regulates insurance companies. See also Mutual Life Ins. Co. v. Owen, 111 Ark. 554.
It is claimed, however, by the defendants that, inasmuch as the proof of death' showed that the coroner’s jury had returned a verdict that Dr. Dixon came to his death by a wound self-inflicted, the penalty and attorney fees prescribed by the statute should not be imposed. This contention has been decided adversely to the defendants in the ease of Fidelity and Casualty Co. v. Meyer, 106 Ark. 91. No valid reason is assigned by the defendants why the rule laid down in that case should be changed, and we adhere to it.
It is also insisted by the defendants that some of the policies were executed and delivered to the insured in the State of Texas, and for that reason our statute providing for penalties and attorney’s fees should not apply. This court has held that the nature, validity and interpretation of contracts are to be governed by the law of the place where they are made, but the remedies are governed by the law of the forum. Lawler v. Lawler, 107 Ark. 70, and Wilson v. Todhunter, 137 Ark. 80.
The statute of the State of Texas provides that in all cases where the loss occurs and the life insurance company liable therefor shall fail to pay the same within the time specified in the policy after demand therefor, such company shall be liable to pay the holder of such policy, in addition to the amount of the loss, twelve per cent, damages on the amount of such loss, together with all reasonable attorney fees for the prosecution and collection of such loss. Texas, Rev. Stat. 1895, § 3071.
This section was construed by the Court of Civil Appeals of Texas in Mutual Reserve Life Ins. Co. v. Jay, 109 S. W. 116. The court- said that the additional twelve per cent, upon the amount of the policy provided for in the statute is not a penalty, but is declared to be damages, and that every contract of insurance of the nature provided for entered into in the. State of Texas is made in view of the .statute, and its provisions enter into and form a part of it. A writ of error was denied by the Supreme Court of the State of Texas. Hence it may be taken as settled by tbe Supreme Court of that State that the plaintiffs were entitled to the twelve per cent, as damages together with a reasonable attorney’s fee. That construction of the statute will be enforced by comity in this State because it is not contrary to our general public policy on the question and is not violative of any statute of this State.
It is also insisted that the judgment must be reversed because the court in its instructions gave the plaintiff the right to recover unless the jury should find from a preponderance of the evidence that the deceased intentionally killed himself.
Counsel for the defendants contend that in the policies of some of the companies the intention of the insured is not material, but that the policies are void if he kills himself intentionally or accidentally. No prejudice could have resulted to them from this instruction, because the jury made a special finding that Dr. Dixon did not shoot himself.
Other assignments of error are made, which we have considered and find not well taken. "We do not deem them of sufficient importance to merit a detailed discussion.
We have carefully examined the record and have found no reversible error in it.
It follows that the judgment will be affirmed.