Travelers Insurance v. Connolly

125 A. 900, 145 Md. 554

• Court: Court of Appeals of Maryland
• Decided: April 10, 1924
• Status: Published

Opinion

Adkins, J.,

delivered the opinion of the Court.

This is a suit upon a life insurance policy and the defence is suicide.

Vincent A. Connolly, the insured, was found dying in Druid Hill Park, Baltimore, on the afternoon of October 6th, 1921, and within a few minutes thereafter died from a pistol shot wound in the head. His life was insured by two policies issued by The Travelers Insurance Company in the sum of $5,000 each. In each of them was a clause providing that

“In case of suicide committed while sane or insane, within one year from the date on which this insurance shall become effective, the limit of recovery hereunder shall be the premiums paid.”

The policies were issued, respectively, April loth, 1921, and May 18th, .1921.

On refusal of payment by the company, suit was brought by the widow, the beneficiary named in tbe policies, and the jury returned a verdict in favor of the plaintiff. This appeal is from the judgment entered on that verdict.

The important facts are as follows:

The insured at the time of his death was thirty-one years old. He had a wife and two children, to whom he appeared to ,be devotedly attached, and his home life was happy. He was always cheerful azzd zzever seemed to be depressed. He had been employed for about ten months by the Equitable Trust Company at a salary of $4,250. Prior to that he was izz the employ of the Fidelity Trust Company for about fifteen years, part of the time as teller and later as assistant secretary, during which time, as testified by Mr. Pope, secretary and treasuz’er of the Equitable Trust Company, azzd a witness for defendant, he probably handled milliozzs of dollars. Mr. Pope also testified that while in the employ of his compazzy Connolly was mazzager of the Howaz’d Street Branch, and that he was largely izzstrumental in building up the bzzsizzess of that branch; that he had many friends, was a man of 'sunny disposition, attractive izz manner, of high character, and made many friends for the company, azzd had the entire confidence of his superior officers; that it was not uzztil a few days before his death that anything happened to bring his character in question; that on October 4th, 1931, Mr. Page, the State Bank Examiner, as a result of azz examination made of the branch office the latter part of 'September, wrote the president of the Equitable Trust Company a letter izz which he called attention to the fact that ozz or about the zzziddle of July Connolly began to draw cheeks against the compaziy wheiz he had no account with it, these checks aggregating about $1,800, of which there remained at the time of the examination checks amounting to $1,249; that these checks were given to various pez’sons, and were returned to the bank through the clearing house, and when so returned were handled by the bookkeepers and were taken out of the woz’k by Connolly azzd charged to an account in the general ledger, known as “cash items,” that the paid cheeks wez’e then turned over to the teller’, who held them, but did not include them in his settlements; that this conduct of Connolly was not oizlv reprehensible and illegal, but it iizvolved a number of the bank’s employees, over whom he exercised authoz*ity; that in view of all these circumstances, in the writer’s opinion, Con nolly should be dismissed. The letter referred to some other minor irregularities, not, however, reflecting upon Connolly’s honesty. Mr. Pope further testified that, oil receipt of this letter, Connolly was called to the main office of the company and the contents of Mr. Page’s letter were read to him, except the recommendation of dismissal, and he was asked for an explanation; that the witness and Mr. Evans, the vice-president, went to the Howard Street office, made an examination as to the matters, referred to in the letter and took them up with Connolly, “who explained the matters to our satisfaction as having been completed and carried to a conclusion, and upon our further talk with the president, after having examined the matters in detail, Mr. Evans and 1 visited the office of the Bank Commissioner and laid the matter before him,” and requested'him to withdraw his recommendation of dismissal, which he did; that this was on the 4th or 5th of October; that Connolly was never told that bis dismissal had been recommended; that on the 6th of October the overdraft sheet, which was daily sent by the branch to the main office, did not convey the information shown by the books of the branch office in reference to an overdraft of the L. F. Johnson Plastering Company’s account; that witness’ attention was called to this by some one in bis office; that on examination of the account witness found it was overdrawn fo the amount of about $2,700; that he examined the checks and found one for $1,200, that had been charged against the account, on which the cash had been given to Connolly; that while standing at the teller’s window, Connolly, who had been absent up to that time, came in; that witness addressed him “in the way I generally did, ‘Hello, Yinnie,’ and asked him if he could tell me what he did with the $1,200 he had gotten on the cheek that he had signed and which had been charged against the account of the L. E. Johnson Plastering Company. He said, ‘I had to use that amount of money to take up a bill or note for material used by the Johnson Plastering Company for work done at St. Mary’s Industrial School.’ T then asked him if he liad the right to sign the checks against the Johnson account; he said he had, as he had about a fifty per cent, interest in the company. I then ashed him if he knew, by the charging of the $1,200 check to their account, that the Johnson account was overdrawn about $2,100. He said, ‘That is the first I knew- of it’; then I said, ‘Vinnie, what are you trying to do ?’ He answered, ‘I am not trying* to- do anything.’ I then asked him if the overdraft had 'been reported to him that morning, and he said he did not know anything about it; then I asked him to come up to Miss Hunt, who had the work of making out the reports to the main office, showing the overdraft, and in his presence I asked her if she made out the report that- morning. She said yes. I further asked her why she had not reported the overdraft to me on -the sheet showing the overdraft of the L. F. Johnson Plastering Company, and she looked at me and she looked at Mr. Connolly, and Mr. Connolly said, ‘Answer Mr. Pope’s question;’ and she said that Mr. Connolly had said not to report it to the main office; Mr. Connolly at that point said: ‘Mr. Pope, I will go around to Mr. Jo'ímson’s office and get a receipted bill showing the payment used -with the $1,200; I will be back in a few minutes.’ I said, ‘All right, I will wait for you.’ He went out and did not come back alive.”

The witness said this was about 2.30 o’clock in the afternoon; that he waited for him to come back until half past three or four o’clock and then returned to his office; that at about seven o’clock that night an officer from the northwestern section called him over the ’phone and informed him that Connolly had been found in the park with a pistol shot wo-xind in his head.

There was also another item of $1,965, testified to by this witness as having been charged up to the L. F. Johnson Plastering Company account, which apparently was done to enable Connolly to take up- a note of his for that amount, which had been secured by a bond for $2,000.

Johnson, a brother-in-law, after Connolly’s death, repudiated his authority to charge up- these items to that account, and the company credited the account with them and collected tlie amount from the bonding companies by which Connolly was bonded.

It is not at all clear, however, from Johnson’s, testimony at the trial that Connolly had not authority to check on this account. His testimony shows that Connolly was interested in the business of the plastering company, and that Johnson was away from the office a good deal in connection with two important jobs, and that there were times when it was necessary for bills to be paid in his absence, and that Connolly had authority “to sign contracts and things like that”; that there was due his estate at the time of the trial $1,600 from the profits of the business; that “'there were lots of times we had material shipped to town with sight bill of‘ lading attached. Being 'out of town, you understand, it, would be no more than right for Mr. Connolly in a case like that, with his interest in our concern, to sign a cheek like that so we could get the material on the jobs.”

“Q. Air. 'Connolly told Mr. Pope that that is what he was going out to do; that he paid .for some of your materials. As a matter of fact, was not that true that he paid for some of those materials with that check ? Ans. Just as .1 say, a good deal of materia] is sent with sight bill of lading. That probably might have been the reason; 1 don’t know. I was not in town the day he signed that check, but that is what he told me — a bill of goods had come, and he signed the cheek. Of course, I don’t know. Q. Don’t you know that it went for the payment of metal laths ? Ans. You see, it has been so long ago, I just don’t remember that particular ease. At the time I was away, but I recall that some metal lath came in, and 1 understand that is the reason the check was drawn to pay the sight draft on the metal lath. Q. Were they otherwise paid for except by the giving of that check ? Ans. No, sir.”

It further appears from this witness’ testimony he was out of the city the afternoon of October 6th.

It is not certain that any of the witnesses saw Connolly after he left the office at about 2.30 P. M. until he was found-in the park.

Samuel A. Friedman, a pawnbroker, testified that in tlie afternoon of tbat day he sold him the pistol which was found by his side. He could not fix the hour. It might have boon either before or after the interview between Pope and Connolly. Friedman testified that Connolly said they were terrorizing Forest Park, and every time his wife hung clothes on the line some one would steal them, and he wanted to buy her a pistol for protection from the robbers.

Mrs. Connolly testified that her husband had said he thought he had better get a pistol for their protection, as their house was in a new neighborhood and there had been several robberies, one next door to them.

Several witnesses testified about the finding of Connolly in Druid Hill Park. They do not entirely agree as to the details.

George Allen Martin, a chauffeur, was driving through the park between 5 and 5.30' o’clock. A man driving a car met him, and in passing told him “there is a man dying down the hill.” Martin turned back and found Connolly lying under an oak tree flat on his back with a 5.30 edition of an afternoon paper “folded longways down his chest”; that “he had his hands folded like that (indicating) across his chest. When I went up- to him the gun was lying about the calf of his leg, about a foot from his leg, and I kicked the gun away from him about a man’s length. The man was still breathing; he was having a hemorrhage, and his hat was placed under his head, under the back of his head, and he was lying down hill, his head lower than his feet’.’; that he left him and went after a police officer; that he did not notice any powder marks on him; that his eyes were swelled out and he had blood on his face; that his hands were folded across the paper.

Several witnesses described the wound. The ball entered the temple on one side of his head and came put the other. The coroner expressed the opinion that it entered o-n the right side and came out on the left side; the two undertakers thought the appearance of the wound indicated the reverse, and one of them testified that the coroner, who'gave a contrary opinion, asked him in the court room, at the first trial of the case, on which side the bullet had entered, saying he had forgotten, but after talking with him agreed that it was on the left side. The undertaker further testified that the depression was on the left side; that the course of the bullet was upward from left to right; that part of the brain was found on the right side of the hat. The uncontradicted testimony is that Connolly was right-handed.

Several witnesses, including the coroner and Dr. Matthews, a surgeon at the Maryland General Hospital, testified that the wound might have been caused by accident, suicide or murder; that.it was impossible to toll which.

There are four bills of exception; three relate to rulings on evidence and one to the rulings on the prayers. The reporter is requested to sot out all the prayers in his report of the case.

We find no error in any of the rulings of the trial court. Plaintiff’s prayer is a correct statement of the law, and was, therefore, properly granted.

The burden is upon the defendant to prove suicide. Defendant’s first and second prayers assume facts which were not proved, and might have been refused on that ground. Besides, it is not the law in this State that, because a man has been accused of misappropriating money and, either before or after, purchases a pistol and is subsequently found with a pistol wound through his head, that the burden of proof is then shifted.

Defendant’s sixth prayer sought to have the jury instructed that there was no legally sufficient evidence to show that there is any reasonable probability that death was due to any other cause than suicide. And its third prayer asked for an instruction that it appears from the undisputed evidence that death was due to suicide. These prayers will be considered together.

In this State, where the burden is upon one to prove a fact,, it is not for the court to say whether that burden has been met, and to withdraw a case from the jury at the instance of him upon whom the burden rests. Calvert Bank v. Katz, 102 Md. 56; Lemp Brewing Co. v. Mantz, 120 Md. 176; Jewel Tea Co. v. Weber, 132 Md. 178; Beasman v. Butler, 133 Md. 382; Bell v. Steen, 137 Md. 388; Taylor v. Robert Ramsay Co., 139 Md. 113.

But the appellant contends that the above rule, supported by so many cases, was modified by the following expression of this Court in Baltimore Life Insurance Co. v. Fahrney, 132 Md. 229, viz.: “To warrant us in so deciding’ (that is, as a matter of law that upon the evidence offered the insured intentionally and designedly took his life) the evidence offered to overcome the presumption of death from accident should be so convincing that there could not reasonably be two opinions touching the. result; for if it were otherwise, it would be an invasion of the province of the jury to take the case from it.”

In view of the unbroken line of decisions of the Court, both before and since the Fahrney case, it should not be understood that this Court intended to go beyond the limitation of the rule in contributory negligence cases, which requires that the undisputed evidence on which a case may be withdrawn from the jury must be furnished by witnesses for the plaintiff. If there are any cases in this State wherein that rule appears to have been modified, it was where evidence from other sources amounted to demonstration. State use of Bacon v. Balto. & P. R. R., 58 Md. 482.

No case in this State has been cited, nor have we found any where this 'Court has held, as a matter of law, that a defense of suicide was established.

But, even apart from the rule above mentioned, we could not say in this case that there was no room for reasonable minds to differ as fo the inference to be drawn from the undisputed testimony, even if that test could be applied in a ease where the proof relied on for a directed verdict is no: furnished by plaintiff’s witnesses.

For one thing, it is difficult to understand why a right-handed man, intending to shoot himself, should take the pistol in his left hand. For the purposes of these prayers we must accept as true the testimony that the bullet entered on the left side, although not undisputed.

And there is at least room for doubt whether there was motive shown sufficient to cause a sound-minded, healthy man to deliberately take his own life. Travelers Insurance Co. v. Nicklas, 88 Md. 470; Royal Arcanum v. Brashears, 89 Md. 624; Modern Woodmen v. Cecil, 108 Md. 357; Rosman v. Travelers Insurance Co., 127 Md. 689; Baltimore Life Insurance Co. v. Fahrney, supra.

We find no error in the rulings on the testimony embraced in the first three hills of exception. They wore all to the refusal to strike out testimony not admitted subject to exception. The questions wore not objected to.

But, apart from this, -we think the testimony was proper on cross-examination. The "witness Johnson was- offered by defendant to prove that Connolly had no authority to sign cheeks on the account of the Johnson Plastering Company. The fact that Connolly told Johnson, before any question was raised at the bank, that “a bill of goods bad conn, and he signed the check,and that the cheek was to pay for that material "while he was away, was relevant to show good faith on the part of Connolly.

And the fact, brought out by a question of the court, that the material had never beeu paid for otherwise than by giving that check, was proper as going to show that, while J olmson had denied the authority of Connolly to sign this check, he had gotten the benefit of the proceeds.

Judgment affirmed, with costs to appellee.