holding that, under Tex.Rev.Civ. Stat. Ann. Art. 4477, ascendancy 54a, a explain in a death certificate that the fatality was accidental constitutes prima facie evidence of accidental death

Summary the this situation from Anderson v. Siemens Corp.

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SELLERS, Justice.

make reservation Life Insurance agency brought this suit versus the heritage of william E. Shacklett et al. To cancel a particular policy of life insurance money on the life of william E. Shacklett because of alleged fraud in securing the same by making false answers come the application.

The plan was approve on June 4, 1963, and also Mr. Shacklett died on may 18, 1965.

The defendants denied the allegations in plaintiff"s petition, and also by cross-action Mrs. Shacklett, as beneficiary in the policy, sought to recoup the challenge value of the insurance noted for in the policy. In answer come the cross-action, the plaintiff alleged that William E. Shacklett"s (the deceased) death was a suicide, and tendered right into the Court the amount of the premiums paid because that the insurance which, it is alleged, was the only liability under the terms of the policy since the insured"s death was a suicide.

The instance was tried come a jury and also resulted in a referee on the jury"s decision in favor of Mrs. Dorothy Faye Shacklett, the beneficiary in the policy of insurance, because that the sum of $9,700, along with attorney"s fees and damages. The judgment denies the plaintiff, reserve Life insurance Company, any kind of recovery on its fit to release the policy for fraud. From this judgment the plaintiff, make reservation Life insurance Company, has duly prosecuted one appeal come this Court.

The deceased, wilhelm E. Shacklett, died around 10:30 at night in his house in the room wherein he and also his wife slept. He came in, turned on a light, and also partially awoke his mam who had retired earlier. Shacklett to be sitting ~ above the side of the bed opposite whereby his wife slept. The pistol was kept inside a slide door the the headboard the the bed where they slept. No conversation to be had between Mrs. Shacklett and also her husband ~ he changed home. A gun to be exploded and also the mam jumped the end of the bed on her side and went screaming under the room calling her married daughter who was sleep in an additional room of the home at the time. It to be disclosed that the explosion indigenous the pistol win the insured under the chin and came out the optimal of his head. The insured passed away at his house from the gunshot wound.

every Wednesday, it was the habit that the insured to walk out with a number of friends to a lodge wherein the guys usually met every week and also played cards and also dominoes. Some would bet on the game they played and some would certainly take a few drinks. This had been walking on for about five years so much as the insured to be concerned. The is true the the insured had been arrested because that drunkenness on some occasions, the he and also his wife had fussed on part occasions, and also that he had actually struck her, but this was not instantly before his death. The had 4 girl children, among whom to be married. His connections with his children were normal, and he had actually kept the same task for ten years prior to his death.

In this State, there is a very solid presumption against suicide. Southland Life insurance Co. V. Brown, Tex.Civ.App., 121 S.W.2d 653; good Southern Life Ins. Co. V. Watson, Tex.Civ.App., 343 S.W.2d 921. The same situations place the load of evidence of the issue of self-destruction on the appellant.

The very first four assignments the error through appellant an obstacle the admissibility in proof of the fatality certificate. The fatality certificate complies completely with the provisions the Vernon"s Ann.Civ.St. Post 4477, preeminence 54a, and the certificate the the State Registrar was in all points proper. We discover the legislation in this State come be the such certificates room not only admissible in evidence, yet are prima facie proof of the facts therein stated. In this certificate, the explain is made that the fatality of the insured was an accident. American Nat. Ins. Co. V. Valencia, Tex.Civ.App., 91 S.W.2d 832; Southland Life insurance Co. V. Brown, supra; global Life Accident Ins. Co. V. Barron, Tex.Civ.App., 269 S.W.2d 467.

In the Valencia instance at 91 S.W.2d web page 833, it is held:

"It was not error, under article 4477, dominion 54a, of the Revised polite Statutes, as added by plot 1927, 1st Called Sess. C. 41, § 21 (Vernon"s Ann.Civ.St. Art. 4477, dominance 54a), to allow in proof the effectively certified copy that the fatality certificate the the insured, Rosendo Lopez. Universal Life Accident Ins. Co. V. Ledezma (Tex.Civ.App.) 61 S.W.2d 165."

us have carefully reviewed all of the proof in this case and find the very same amply sufficient to assistance the jury"s finding that the insured did no commit suicide.

complaint is made of the Court"s meaning of "suicide" given in the fee to the Jury. The definition given was together follows:

"You are instructed the suicide means the intentional acquisition of one"s own life."

We find no error in the fee under the facts of this case. The proof did no raise the issue of insanity and therefore, over there is no need to charge top top the same.

A Deputy Sheriff of blacksmith County do a routine investigation on the night of Mr. Shacklett"s death, and on his go back to the office, make the following report which was filed in the office of the Sheriff, towit:

"REMARKS — william Schacklett come home about 11:00 p.m. Come right into the bedroom walked roughly the bed acquired a 38 S.W. One-of-a-kind gun and shot himself with the neck bullett come out side his head and also lodged in ceiling the room.

"His wife was in bed and seen the gun together he got it and seen the shoot himself.

"He had been drinking and there was simply a small whisky left in a quart bottle.

"Outside details he was fairly a women man and also they his wife and him had actually been having actually trouble.

"Dated might 18, 1965 Signed john Wymon."

The Sheriff of blacksmith County testified as follows:

"Q. Sheriff, in connection with the operation of your office, I will certainly ask you to tell the Court whether or no you have a exercise of having actually reports filed by your deputies once they go on one assignment?

"MR. McGEE: If the Court please, us object to the practice of the Sheriff"s office here, because that the reason that that is a conclusion ~ above the component of this witness and also immaterial to any kind of issue in this lawsuit.

"THE COURT: Overrule the objection.

"A. No, sir, i wouldn"t to speak that i would have a exercise of my deputies submit a report. Ns leave the strictly to their discretion on any type of investigation the they make, even if it is they paper a report or not.

"Q. If they do document a report, are those reports preserved in her office together a part of the records of your office?

"A. Yes, sir. If they document one, it"s preserved in mine office.

"Q. And was the the usual course of business in the operation of the Sheriff"s office in those particulars in the month of May, 1965?

"A. Yes, sir.

"Q. Every right, sir, I will ask friend if one of two people or any of your deputies filed a report in may of 1965, pertaining come one, wilhelm E. Shacklett, that Lindale, Texas?

"A. Yes, sir.

"Q. I will certainly ask you come tell the Court even if it is or not that report was filed in keeping with the business practices you just testified about?

"A. Yes, sir, in the kind of memorandum. Actually, wasn"t filed together a report. It was a memoranda in ours office, because that our information."

The Court refused the admission of this statement into evidence. The appellant contends that it was admissible under post 3737e. This statute has been held to require the attempt court to discover as follows:

"Since Gaston Hospital to be not presented to be a publicly hospital, the records, if admissible at all, would be made so by virtue of write-up 3737e, Vernon"s Ann.Civ.St., which provides for the admissibility of documents if the referee finds:

"(a) It to be made in the regular course the business;

"(b) It was the continual course of that service for an employee or representative

that such company with personal knowledge of together act, occasion or condition to make such memorandum or document or come transmit information thereof come be included in such memorandum or record; * * *." Skillern Sons, Inc. V. Rosen, Tex., 359 S.W.2d 298.

The Sheriff"s evidence should be enough to show this declare inadmissible under this statute since the Sheriff had no requirement that his deputies make such reports, yet if made, they were maintained on document in his office. Under the foregoing authority, to do this explain admissible, the Court had actually to find that this statement to be made in the continuous course the business. We space of the opinion that the psychological court to be justified in holding stated statement go not satisfy this requirement.

The document in this instance wholly negatives the truth that anyone observed the insured shoot self (as stated in the deputy"s statement) and therefore, the second requirement the the statute the the party make the statement had an individual knowledge of claimed act is completely lacking.

The appellant complains that the court"s failure to approve the appellant a new trial due to the fact that of the adhering to occurrence. The counsel because that appellee take it the stand to prove up the time he had actually spent in prepare the situation in stimulate to recoup reasonable attorney"s fees:

"A. Ns didn"t figure it top top a fee per hour.

"Q. And also your testimony is that that is a contingent fee arrangement?

"A. Ns think — if I know contingent fee, that is not specifically a arbitrarily fee. It does no come from any kind of money come which Mrs. Shacklett is entitled.

"Q. But, did I understand you to tell the Jury that in the occasion she is unsuccessful, then she would owe friend no attorney"s fee?

"A. That"s right. That"s her covenant with me.

"Q. Isn"t that — i am not arguing with you, yet isn"t the an out and out contingent fee?

"A. That is arbitrarily on the outcome, yes.

"Q. And also that is the arrangement that you have actually with her? That"s her testimony?

"A. Yes, sir. She doesn"t pay me something if us lose."

since this evidence was offered by the attorney because that appellee in answer to appellant"s attorney"s questions and also no objection to be made to the very same by the appellant in ~ the time however complaint was increased for the very first time ~ the attempt in a activity for instructed verdict, there was no error by the psychological court in denying the motion.

complaint is make that specific issues it is registered to the jury to be answered against the undisputed evidence. The record shows that this insurance policy was composed by an certified dealer of the firm who called upon the insured of his very own volition, and was advised by the insured that he was not in the market for insurance yet that he was going to construct a brand-new home and that once he did, that would desire insurance. Some 3 months later on after the insured had developed his brand-new home, the certified dealer again referred to as upon the insured and sold the the policy of insurance money involved. Among the questions which was in the application inquired whether the appellee had ever had or to be treated because that a disorder that the stomach or intestines. The answer to be "no." The fallacy the the prize is alleged to be in the truth that the insured, an ext than ten years prior to he take it the plan of insurance, had been shooting in the stomach, was placed in a hospital and totally recovered and also had never had any kind of trouble with his stomach or intestines since. The jury found that the answer provided was not product to the risk and the same is true with reference to whether the insured had remained in a hospital in ~ the last five years. The record shows that he had spent one night in a hospital as a result of an automobile accident some three years before the policy was written, indigenous which he totally recovered.

The burden was top top appellant to present that these answers were product to the risk, and the jury through ample evidence to support them, discovered they were not product to the risk. This being a fact concern for the jury, the answers are binding upon appellant. Bankers conventional Life Ins. Co. V. Atwood, Tex.Civ.App., 205 S.W.2d 74.

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there are various other assignments of error which this Court has actually considered and also they are reputed without merit and are overruled.