Home Life Insurance v. Miller

Kirby, J., (after stating the facts). Appellant insists that the court erred in refusing 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: ‘ ‘ Althoug'h 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 o!f 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. E. 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 Ms office, that he was depressed at all times, not to say gloomy, that he was listless and indifferent about the conduct oif 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 Mlling 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 hé 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 mig'ht 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 oif 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 ldlling 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 ldlling 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 oif 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.