APPEAL from a judgment of the Superior Court of the County of Maricopa. M. T. Phelps, Judge. Judgment reversed and cause remanded with directions to dismiss complaint.
Messrs. Ellinwood & Ross and Mr. Joseph S. Jenckes, Jr., for Appellant.
Messrs. Wilson & Wilson, for Appellee.
[60 Ariz. 417] ROSS, J.
This is an appeal by the New York Life Insurance Company from a judgment against it in an action to collect an insurance policy. The policy was on the life of Charles B. H. Hunter and in it the plaintiff Willa Frances Hunter, mother of the insured, is named as the beneficiary. The policy was for $2,000 and was issued November 12, 1940. The insured died on or about September 4, 1941, some 10 months after the policy was issued. The plaintiff seeks to recover the amount of the policy. The defendant, in response to the complaint, tendered the amount of the premium it had received, to wit, $38.88 and set up as a defense to the action a stipulation of the policy in the following words:
"Self-destruction. -- In event of self-destruction during the first two insurance years, whether the Insured be sane or insane, the insurance under this Policy shall be a sum equal to the premiums hereon which have been paid to and received by the Company and no more."
The case was tried before a jury, the only contested question being whether the insured committed suicide, or died from natural or accidental causes, or was killed. The jury resolved the answer in favor of the plaintiff and returned a verdict for $2,000, the full face value of the policy, upon which judgment was entered. Defendant has appealed.
[60 Ariz. 418] At the close of the case the defendant moved for an instructed verdict, contending the evidence was conclusive the insured destroyed himself. The denial of this motion is assigned as error. Whether the court's ruling was right or not depends upon what the evidence in the case shows, and that we now consider.
The insured, a young man 23 years old, lived with his mother and a younger sister, near Phoenix, and was operating, and had been for some time operating, a service station and garage near Glendale, Arizona. If he was not losing money during
the summer of 1941, it seems certain he was not making money.
He and a 15-year-old boy by the name of Robert Lowell Howard were on the day shift, from seven in the morning to seven at night. William D. Flynn was in charge during the nights. According to Flynn, around ten o'clock Wedensday night, September 3, 1941, the insured came to the garage and changed his clothes and got $2.00 in money. The next morning, about six o'clock, he returned and to Flynn's inquiry "How are you coming? Did you go home?" he answered "Wait." He then gave some water to a dog that had been left with him by some one and went back to the garage, changed his clothes and left through a side door without answering Flynn's questions, and that was the last time Flynn saw him. Flynn noticed he had emptied the contents of his pocket onto his bed and saw some little change. This bed had on it an army blanket at the time, which was later found lying on the insured's dead body on the desert.
Howard testified that the insured was indulging in the use of intoxicating liquors around the garage during the day shifts. Other witnesses also stated that he was drinking liquor around the garage. Opal Baker, a waitress at the Top Hat Cafe located near the Hunter service station, testified she had gone but with him two [60 Ariz. 419] or three times and that on one occasion, in July, 1941, he had said:
"... he had been everywhere he wanted to go and seen everything he wanted to see and he was ready to die and he thought some time he would just end it all...."
They had been drinking and between them consumed a pint of liquor.
He made a similar statement to Robert Lowell Howard, who had warned him against his reckless driving, saying "he didn't care, he had seen all he wanted to see and didn't care when he died, or something to that effect."
Mrs. Margaret Snyder, Of Phoenix, testified to meeting the insured the night of September 3, 1941 in the Triangle Bar in Glendale and to having some drinks of liquor with him and others, and that while they were laughing and talking at the bar he said: "I am going to kill myself" and upon being rebuked ...