274 So.2d 291 (Ala. 1973), SC 57, Jefferson Standard Life Ins. Co. v. Pate

Docket NºSC 57.
Citation274 So.2d 291, 290 Ala. 110
Opinion JudgeMcCALL, Justice.
AttorneySpain, Gillon, Riley, Tate & Ansley and Ollie L. Blan, Jr., Birmingham, for appellant., Wheeler & Christian, Birmingham, for appellee.
Case DateMarch 08, 1973
CourtSupreme Court of Alabama

Page 291

274 So.2d 291 (Ala. 1973)

290 Ala. 110



Linda Hall PATE.

SC 57.

Supreme Court of Alabama.

March 8, 1973

Page 292

[290 Ala. 111] Spain, Gillon, Riley, Tate & Ansley and Ollie L. Blan, Jr., Birmingham, for appellant.

[290 Ala. 112] Wheeler & Christian, Birmingham, for appellee.

McCALL, Justice.

Linda Hall Pate, the appellee, brought this action on the double indemnity agreement

Page 293

attached to and forming a part of a life insurance policy, issued by the appellant Jefferson Standard Life Insurance Company to her now deceased husband, Thomas Attaway Pate, the named insured. He died from a shotgun wound inflicted in the upper area of the right chest. The appellant paid the appellee as beneficiary under the policy the face amount thereof but declined to pay under its double indemnity agreement. This, in essence, provides that the company will pay the beneficiary an additional amount equal to the face amount of the policy, if the death of the insured should result in consequence of bodily injuries effected directly and independently of all other causes through external, violent, and accidental means. The agreement further provides that this additional amount shall not be payable if the death of the insured results directly or indirectly from suicide or any attempt thereat whether sane or insane. The gravamen of the appellee's single count complaint is that the insured died as a result of an accident which was effected directly and independently of all other causes through external, violent and accidental means. The insurance company pleaded in short by consent the general issue, contending that death was the result of intentional suicide. After the close of the case, the jury returned a verdict in favor of the appellee for the full amount sued for, with interest added. The appellant appeals from the judgment entered on that verdict.

The appellant insists that there was not even a scintilla of evidence upon which to submit the case to the jury and that its requested affirmative charge should have been given. However, the appellant states that the real issue is that the evidence was insufficient to sustain the burden of proof cast on the appellee to establish that [290 Ala. 113] Thomas Attaway Pate met his death as the result of accidental means and its motion for a new trial should have been granted. The issue so made necessitates our setting out a resume of the circumstances attending the insured's death.

At the time of his death, the insured was thirty-four years of age, married to the appellee, and residing with her and their three minor children at Empire, Alabama, in a neighborhood where his younger brother, another relative and several friends lived close by. There was a mortgage on his home and automobile, and he owed a loan of $1200. He had no financial troubles. He was gainfully employed by South Central Bell and had been recommended for promotion. So far as is known he was physically and mentally well, was of good personal habits, had manifested no depression or despondency, or emotional stress and had no marital or domestic bothers. On the morning prior to his death that afternoon, he returned to his home about 1:00 a. m. from his employment and went to bed. He arose around six or seven a. m. and after a visit and an automobile drive about the crops with his neighboring brother, who operated a farm adjoining him, he had some breakfast. He then sat around his house, after which he went back outside while his wife was canning corn and doing some washing. At sometime during the morning he had a can of beer, or two or three drinks of whiskey. He telephoned his employer that he would not be in for work that Saturday afternoon. He had an arrangement which allowed him to select his two off days each week. He told his wife that he was going to farm. He had his own garden and had also on occasions voluntarily helped his younger brother in his farm operation. He went fishing and hunting, during season, whenever he had an opportunity. After the telephone call to his employer, he sat in the den of the house and smoked. His wife was preparing lunch about 11:30 or 12:00 o'clock, and later about 1:00 or 1:30 p. m. while she and their nine year old son were at the table eating, the insured walked by them and went into his and his wife's bedroom. Within a few minutes, she heard a muffled sound. She was only able to crack the door and through this, she saw part of her husband's

Page 294

legs extended on the floor. No one was in the room when the fatal shot was fired and there were no eye witnesses to the shooting. The insured was gasping for breath and near death when the first person reached him. He was partly sitting and partly leaning against the wall with his shotgun lying along his right side with the barrel pointing toward the wall against which his back was leaning. The exact position of the gun with relation to his body varies with the testimony of the witnesses. The breach was partly open with an exploded shell sticking out of the chamber. There were powder burns on the side of the wound nearer the center of his chest. Such indicated a contact wound where the muzzle of the gun barrel was against the chest on the outward side and slightly away from the chest on the inward side toward the chest center. A live shell was found in the magazine and was ejected by rearward action of the breach lever. There was testimony that he kept his 16 gauge automatic Browning loaded on the right side, in the bedroom closet behind his wife's clothes. He kept his work clothes hung on a nail inside the closet door. Within the previous two weeks he had shot at something killing his chickens and disturbing his garden, and that morning he had said that he was going to try to catch some rabbits in...

To continue reading

Request your trial