Heiman v. Pan American Life Ins. Co. , 183 La. 1045 ( 1935 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] The plaintiff is the beneficiary under two policies of insurance; one for $5,000, and one for $10,000. Both policies provide for double indemnity in the event of the insured's death by accidental means. The policies were in force less than two years when the death of the insured was caused by a pistol shot while the insured was, at the moment, alone in an automobile. The time the policies were in force is stated because they contain the following provision:

"Self Destruction: — In the event of self destruction within two years from the date of the issue of this policy, whether the insured be sane or insane, the insurance under the policy shall be a sum equal to the premiums thereon which may have been paid to and received by the Company, and no more."

The plaintiff sued for double indemnity. Exceptions of no right and no cause of action, leveled at the demand for double indemnity, were filed and referred to the merits; and the defense set up in the answer of the insurance company is a plea of suicide. The case was tried, and from a judgment in favor of the plaintiff for $415, the sum of the premiums paid by the insured, the plaintiff appealed.

The case was long-drawn out in the Civil district court. The record consists of many exhibits, and 827 pages of pleadings and oral testimony.

The issue in the case is whether, while the insured was handling a revolver, while alone, for the moment, in an automobile that was parked in front of certain premises on a public highway, he committed suicide or was killed by the accidental discharge of the revolver.

The defendant relies upon circumstantial evidence to prove its defense of suicide, and to prove a motive therefor. The rule is different as to the degree of proof necessary to prove suicide and that necessary to prove motive.

Where suicide is sought to be proved by circumstantial evidence, the evidence must be of that degree of certainty which will exclude every reasonable hypothesis of accidental death, but where proof of motive is essential to overcome the legal presumption against suicide, the burden is upon the pleader to establish motive by a fair preponderance of the evidence.

In the case at bar there were no eyewitnesses, and no suicide notes or previous declarations by the deceased. Under these circumstances, the law of this state was analyzed and accurately stated in the case of Webster v. New York Life Ins. Co.,160 La. 854, at page 877, 107 So. 599, 607, wherein the court said:

"We have shown, we think, that, in inquiring into the alleged suicide of a person deemed sane, where there is no direct evidence, as of eyewitnesses, suicide notes, or previous declarations, the physical surroundings, which almost always leave room for doubt as to accident or suicide, must be subordinated to the evidence as to motive. The reason is that, although the physical evidence may show unmistakably that the deceased killed himself, nevertheless it does not usually show with the same certainty whether he did so intentionally or unintentionally, and hence that fact must be ascertained by inquiring whether the deceased had or had not some strong motive for taking his own life. In other words, the physical facts tend principally to show whether or not the deceased died by his own hand; whilst the evidence as to motive bears principally upon the intent of the deceased at the time he killed himself. If the deceased had no strong motive for taking his own life, the presumption would be that he did so accidentally; on the other hand, if he did have some strong motive for doing so, the inference naturally is that he did so intentionally."

The holdings of this court in Faulk v. Mutual Life Insurance Co., 160 La. 529, 107 So. 395, and in Andrews v. Provident Life Accident Ins. Co., 179 La. 77, 153 So. 26, are to the same effect. The principle announced in these cases is in accord with the expressions of the text-writers and with the jurisprudence of every state in the Union.

Turning now to the facts, as established by a fair preponderance of the testimony in the record, we find that the deceased was a young man, mentally sound and in splendid physical health. His marital relations were ideal, and he was devoted to his children, who were minors of tender years. He had business reverses something more than a year before his death, but he had organized a new business which he was conducting advantageously and with slowly increasing prosperity. On the day of his death he was on a country road, in an automobile, accompanied by an employee, and engaged in taking orders for goods, and in collecting for goods previously delivered to his customers. He stopped his automobile on the public highway in front of a stile, which was the approach to the abode of one of his patrons, and sent his employee to the house occupied by the patron for the purpose of making a collection. While the employee was on this mission, the deceased took a revolver from a pocket of the car and, by some unexplained means, a cartridge of the revolver was exploded, with the result that the bullet pierced his heart and killed him. His employee heard the report of the revolver and hastened to the car, but when he reached the scene the insured was dead. An inquest was held and the verdict was suicide, but the inquest was reopened, further testimony was heard, and the jury rendered a verdict of accidental homicide.

It is a well-recognized rule of law that the verdict of a coroner's jury is competent only to prove death. It is not even prima facie proof of the cause of death. The inquest in this case may therefore be dismissed without further comment.

On the other hand, the defendant proved that the deceased suffered reverses in his business about a year and a half before his death. That for a time thereafter he appeared morose and more or less downcast, and that he purchased the revolver which caused his death the morning of the day he was killed. Other testimony, all of which is based upon the theory that financial troubles caused the insured to voluntarily take his life, was offered by the defendant. In addition to what has already been said, the evidence offered by the plaintiff, in rebuttal, is direct proof that the deceased at the time of his death had comparatively no financial troubles; that his business, while small compared with the business he conducted before his failure, was successful and its future promising; that his demeanor was cheerful and contented; that he invariably carried a revolver in the pocket of his car on his trips in the country; that on a previous trip his revolver was stolen from the pocket of the car; that he purchased a secondhand revolver from a pawnshop just before leaving the city on the day he was killed, and was told by the seller that the revolver needed greasing, and that he did not know whether or not the revolver was defective. Proof was also offered showing a defect in the operation of the mechanism of the revolver. There was conflicting proof as to whether an oiled rag was in the car at the time the deceased was killed. Two witnesses testified that they saw the rag in the car. Other witnesses testified that they did not see the rag. It is a rule of law that negative testimony cannot outweigh positive testimony, especially where the witnesses are not impeached or otherwise discredited. The rag, and the testimony as to its location in the car, was offered as a circumstance tending to show that the insured was killed by the accidental discharge of the revolver while he was in the act of cleaning or greasing it.

It will serve no useful purpose to review in detail all of the testimony in the voluminous record. Suffice it to say that the evidence, as a whole, preponderates in favor of the conclusion that the death of the deceased was the result of the accidental discharge of a revolver while being handled by the deceased. Finding that the death of the insured was not caused by his voluntary act, and that the defendant has not proved, by a preponderance of the testimony, a motive for self-destruction, we now take up the exceptions of no cause of action and no right of action, as to the demand for double indemnity.

With respect to these exceptions, we cite Mrs. Regina Phillips v. Louisiana Equitable Life Insurance Co., 26 La.Ann. 404, 21 Am.Rep. 549; Brignac et al. v. Pacific Mut. Life Insurance Co. of California, 112 La. 574, 36 So. 595, 66 L.R.A. 322; Corpus Juris, vol. 1, pp. 425 and 444; Cooley's Briefs on Insurance (2d Ed.) vol. 6, pp. 5433, 5434, 5435 and the authorities cited thereunder; Ruling Case Law, vol. 5, p. 3781; 39 A.L.R. 1092, et seq.; Joyce on Insurance (2d Ed.) vol. 6, p. 6183; Penfold v. Universal Life Ins. Co., 85 N.Y. 317, 321, 39 Am.Rep. 660, and Parker v. New York Life Ins. Co., 188 N.C. 403, 125 S.E. 6, 39 A.L.R. 1085. We think these authorities are conclusive of the plaintiff's right to double indemnity.

For the reasons assigned, the judgment appealed from is avoided and reversed, and it is now ordered, adjudged, and decreed that there be, and judgment is hereby rendered in favor of the plaintiff and against the defendant for the sum of $30,000.00, with interest thereon, and costs, as prayed for in the plaintiff's petition.

On Rehearing.