Life insurance attorneys in the Dallas Fort Worth area will have occasion to see something similar to this 1941, Waco Court of Appeals opinion. It is styled, National Life & Accident Ins. Co.,Inc., et al. v. Thompson.
This is a suit by Velma Brewer Thompson against the National Life & Accident Insurance Company, Incorporated, for the recovery of $200 and statutory penalty alleged to be due plaintiff as beneficiary in a policy of insurance issued by defendant on the life of plaintiff’s husband, wherein a brother and sisters of insured filed their plea of intervention asserting right to recover proceeds due under the policy by reason of their allegation that plaintiff wilfully brought about the death of insured. From a judgment in favor of plaintiff, defendant and interveners appeal.
Judgment affirmed.
Velma Thompson instituted this suit against The National Life & Accident Insurance Company, Inc., for the recovery of $200 and statutory penalties alleged to be due her as beneficiary in a policy of insurance on the life of her husband, Era Thompson. Defendant answered with a plea in abatement on the ground that plaintiff had assigned the policy sued upon to one Braswell, and, subject thereto, with general demurrer and general denial. The brother and sisters of the insured filed their plea of intervention, asserting their right to recover the proceeds due under said policy, by reason of their allegation that plaintiff wilfully brought about the death of her husband. Defendant answered further, alleging that it was unable to determine who was entitled to receive the proceeds due under said policy and that it was paying into the registry of the court the sum of $200 to abide the judgment in the cause, and it prayed that it be dismissed from further liability with its costs.
The case was submitted to a jury on special issues, in response to which they found that plaintiff did not wilfully bring about the death of the insured; that a common-law marriage was in existence between plaintiff and the insured at the time of the latter’s death; and that $100 would be a reasonable attorney’s fee for the legal services rendered in prosecuting plaintiff’s case. Thereupon plaintiff moved for judgment on the verdict for principal, interest, attorney’s fee and penalties. Interveners and defendant each presented separate motions for judgment in their favor, respectively, non obstante veredicto. The court rendered judgment in favor of plaintiff and against defendant for the sum of $200, with interest and court costs, and that interveners take nothing. Each of the parties filed separate motions for new trial, all of which were overruled, and to which each duly excepted and gave notice of appeal. Defendant and interveners seasonably filed joint appeal bond and the case is now properly before this court for review. The parties will be referred to on appeal as they were in the trial court.
Interveners assert as their grounds of complaint that (1) the uncontroverted evidence showed the plaintiff wilfully brought about the death of the insured and (2) the evidence was insufficient to sustain the finding that plaintiff was the common-law wife of the deceased. The evidence showed that the insured died as the result of stab wounds inflicted upon him by plaintiff, but in our opinion a fact issue was thereby raised as to whether the killing was wilful. The trial court instructed the jury that the word “wilfully” as used in the charge meant “knowingly, intentionally, deliberately or designedly.” Plaintiff testified at great length to a state of facts, which, if true, showed that she was acting in self-defense as the result of a difficulty provoked by the deceased and that she had been so beaten by her husband at the time when she finally resorted to her knife as a means of protecting herself against threatened death, as to be insensible to any motive other than the primal instinct of self-preservation. She was corroborated in many of the details of her testimony by various witnesses.
While we are thoroughly in accord with the salutary effect of the wise and just rule of the common-law which forfeits any right of recovery to a beneficiary in a life insurance policy who feloniously takes the life of the insured, we can not hold as a matter of law on the evidence before us that plaintiff wilfully or feloniously brought about the death of the insured within the meaning of the statute or of the common law.
We have carefully reviewed the evidence on this issue. Plaintiff testified, in substance, that she and the insured had been living together as husband and wife since 1931 and that they had always introduced each other to members of the public as husband and wife. Several of the interveners testified that they had visited frequently in the home of their brother and plaintiff; that the deceased and plaintiff were considered by those who knew them to be husband and wife. In our opinion, the evidence afforded a sufficient basis for the finding of the jury to the effect that the insured and plaintiff had entered into an agreement to become husband and wife and in pursuance thereof had lived together as such, and had held each other out to the public as husband and wife; and this finding established the insurable interest of plaintiff in the life of the insured as his wife and as the designated beneficiary in the policy sued upon.
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