104 Kan. 571 | Kan. | 1919
Lead Opinion
The opinion of the court was delivered by
Action upon a policy of life insurance by the widow of the insured, who was named as beneficiary. The defense was thut the death of the insured was caused by his suicide. The policy contained the provision. that in case of suicide the liability of the insurance company should be limited to the amount of the premium paid. There was a verdict for plaintiff for the full amount of the policy, $5,000 and interest. A motion for a new trial was overruled, and the defendant appeals. (
John G. McCoy, the insured, signed the application for insurance September 18, 1917; the policy, though dated October 1, -was not delivered until November 3, 1917. The petition alleged that on November 9, 1917, “John G. McCoy died from the effect of a gunshot wound in his head, said gunshot wound being accidentally inflicted by himself, or inflicted by some
The answer alleged that the death was caused by suicide, and the company tendered the return of the note given by the insured in payment of the premium. The reply was a general denial.
The plaintiff rested her case after proving the issuance of the policy, the acceptance of the insured’s note for the premium, and the giving of notice and proof of death. Mr. Alder-son, who was the local insurance agent of the company, testified for the defendant, in substance, as follows: About September 18, 1917, Mrs. McCoy came to his bank in Olathe and inquired about the rates for a $5,000 policy of life insurance upon her husband. He gave her the rates, and on the next morning went to the McCoy home in the country, taking with him Doctor Moberly, one of the local examining physicians for defendant. At that time Mr.- McCoy declined to be examined, and stated he would be in town in a short time. The witness saw McCoy on the street a few days afterwards, and went with him to Doctor Moberly’s office. Mrs. McCoy accompanied them, and the witness explained the policy to both of them. There was one feature of the policy that both Mr. and Mrs. McCoy were particular to inquire about, which was the suicide clause, and they wanted to know what amount would be paid in case of suicide the first year. He explained the suicide provision in the policy to them, asked if they understood it, and they said they did. The same witness and Doctor Moberly both testified that McCoy declined to be examined when they saw him the first time; that Mrs. McCoy insisted he should be examined, and urged him to take out the insurance; that he acted as if he did not want the insurance — said he couldn’t make up his mind, and would let it go until some other time. Alderson also testified that on October 4 he started to the home of the McCoys to make a delivery of the policy and met Mr. and Mrs. McCoy on the road coming to town; that McCoy said he did not want the policy, as it was too much insurance for him, and would be too much of a burden for him to keep up; and that while the witness was arguing with him to induce him to take the policy, Mrs. McCoy insisted that her husband should
Although the petition was framed upon the theory that the insured did not die a natural death, and was either murdered, or killed himself accidentally, the plaintiff made no attempt in her evidence in chief to explain any of the circumstances connected with her husband’s death. McCoy at the time of his death was 51 years old and had no other insurance. He lived on a farm which he rented from his cousin, James McNeal. McNeal testified that he had lived on the farm himself for 47 years; that he had no family; that at the time the McCoys occupied the place he lived in the same house with them, sleeping downstairs; that on the morning of November 9, at about a quarter past five o’clock, Mrs. McCoy came to the door of his room and called him; and that he was already up and dressed. He opened the door, and she said she had heard a phot. She had a lantern in her hand, and she and the witness went out of the house together toward the stable. She then told him 'that she guessed McCoy must have gone up after the horses, and they went to the pasture gate, and then returned to the yard, and she asked him to go and get Mr. Lancaster, a neighbor. When he and Lancaster returned they found Mr. Westhoff, another neighbor, there. Mrs. McCoy, in the meantime, had prepared breakfast, and while the witness was eating, Mrs. McCoy told him they had found McCoy dead. She was not crying and did not seem to be excited or nervous. When she came to his room that morning she did not tell him that McCoy had left the house, but when they had gone toward the stable she said she guessed he had gone out to the pasture after the horses.
Mr. Lancaster testified that when he was at the house Mrs. McCoy told him that they had been looking for her husband for some time. He and Westhoff started out to a straw stack some distance north, and Mrs. McCoy said: “When you find him, I want it understood it is an accident, and not to touch him.” Witness testified that they were then standing in the yard, between the house and the barn, and started north, going about twenty-five or thirty feet when they found the body of McCoy lying five or six feet from a pile of lumber and parallel thereto; no part of the body touching any object; the head to
Westhoff, the other neighbor, testified that Mrs. McCoy came to his house and asked him to come over immediately, but did not state why she wanted him. He took his lantern and started with her, and on the way back she told him that John had gotten up and that they could n’t find the gun; that she had heard a shot; that John said he was going after the horses, but that the halters were still in the barn, and that she couldn’t find him; and that she then said to him, “If you find him, you must not touch him. The law can handle you for touching a dead person if you find — if he is dead”; that when he and Lancaster, continuing the search, started towards the straw stack, a little distance from the house, Mrs. McCoy said to them: “If anything has happened, remember it is an accident” ; and that she then went back to the house.
Doctor Moberly, the coroner, who was one of several local examining physicians of the insurance company, was present when the sheriff made the demonstration, and he and the-sheriff were so well convinced that it was a case of suicide that no inquest was held. The witness Westhoff was also present when the body was found, and he corroborated the other witnesses as to the conditions, the location of the gunshot wound, and the powder burns near the wound in the head, and on the finger and thumb of the left hand.
Mrs. McCoy was called in rebuttal, and testified that on the morning of her husband’s death they got up about five o’clock; that they heard a disturbance out among the chickens; that her husband slipped his clothes on as quickly as he could and went downstairs; that she did not know he was going to take the gun out, or that the gun was gone; that there was a single-barreled shotgun kept in the kitchen behind the door; that about ten minutes after he had gone, the witness'went down and, in the meantime, had heard the report of a gun; that before her husband left the house she heard the chickens “squeaking or fussing”; that the chicken house is northeast from the dwelling house; and that the body was found in the
Mr. Alderson testified that about ten o’clock on the morning of McCoy’s death he went to the McCoy home; that he saw the body, and saw Mrs. McCoy; and that he asked her then if she remembered what he had told her in regard to the suicide clause in the policy, and she said that she did. but that “in this case it was an accident.”
There was no conflict in the evidence respecting the conditions and circumstances surrounding McCoy’s death. It is true that several witnesses testified to conflicting statements made by Mrs. McCoy about what occurred when her husband left the house in the early hours of that morning, and that the first story she told was that she thought her husband had gone to the pasture after the horses, until she found that the halters had not been taken from the barn. Other persons she talked to later testified that she said her husband had heard a disturbance among the chickens, and that he went out to discover the cause. In her rebuttal testimony, she did not deny making the statements to her neighbors that in case they found the body to remember that “it was an accident,” nor did she deny making the statement testified to by the insurance agent, Alderson, that, “in this case it was an accident.” Although the testimony concerning her statements was not contradicted, it was for the jury to determine its effect; and, besides, her statements did not establish suicide as the cause of McCoy’s death. At most, they indicated her anxiety not to have any trouble over the insurance.
The judgment is affirmed.
Dissenting Opinion
(dissenting) : The testimony shows that the conflicting statements of Mrs. McCoy were made at a time when she had not viewed the body, and, presumably, knew none of the conditions or circumstances which would indicate the manner of her husband’s death. That she made the statements to her neighbors is uncontradicted, and the statements themselves, and the testimony as to her conduct when she was told: that her husband’s body had been found, show that her sole anxiety related to the insurance which had been taken out but a few days before, with the thought uppermost in her mind and that of the insured as to the effect upon the policy in case of his suicide. Assuming that Mrs. McCoy was not aware, until after her husband left the house, that he had taken the shotgun with him, and that she knows nothing more about his death than her testimony discloses, there is no conflict in the testimony as to the cause of his death. The conditions in which the body was found, the nature and location of the wound, the powder burns on the head and on the left hand, and the position of the discharged shotgun, all show suicide, and none of the disinterested neighbors, the sheriff, nor the coroner, who examined the body, had any doubt about the cause. The bare reading of the testimony would indicate that no one who was present at the trial could have had the slightest reason for believing that the wound which caused the death of the insured was not self-inflicted. Under the circumstances, I think it was the duty of the trial court to set aside the verdict.
So far as the Heath case, cited in the majority opinion, is concerned, I have always felt that it was wrongly decided; and I would have dissented from the opinion at the time had it not been rendered “per curiam.”