Provident Life & Accident Ins. Co. v. Eaton

• Decision Date: 11 June 1936
• Docket Number: No. 4025.,4025.
• Citation: 84 F.2d 528
• Parties: PROVIDENT LIFE & ACCIDENT INS. CO. v. EATON.
• Court: U.S. Court of Appeals — Fourth Circuit

84 F.2d 528 (1936)

PROVIDENT LIFE & ACCIDENT INS. CO. v. EATON.

No. 4025.

Circuit Court of Appeals, Fourth Circuit.

June 11, 1936.

John A. Chambliss, of Chattanooga, Tenn. (T. L. Hutton, of Abingdon, Va., and Sizer, Chambliss & Kefauver, of Chattanooga, Tenn., on the brief), for appellant.

E. W. Potts, of Abingdon, Va., and W. H. Rouse, of Bristol, Va., for appellee.

Before PARKER, NORTHCOTT, and SOPER, Circuit Judges.

NORTHCOTT, Circuit Judge.

This is an action at law instituted in August, 1934, by Julia P. Eaton, appellee, herein referred to as the plaintiff, against Provident Life & Accident Insurance Company, appellant, herein referred to as the defendant, in the corporation court of the city of Bristol, Va. In August, 1934, the action was removed to the District Court of the United States for the Western District of Virginia, at Abingdon, and was tried before a jury in November, 1935. A verdict was returned in favor of the plaintiff in the sum of $5,000, with interest from June 19, 1934. A motion to set aside the verdict was denied, and the defendant then moved for a new trial alleging, among other grounds for such motion, the discovery of new evidence. This motion was heard and denied and judgment entered upon the verdict. From this action of the court below, this appeal was brought.

The defendant issued an accident insurance policy to Hugh H. Eaton, the husband of the plaintiff, insuring him against accidental death in the sum of $5,000. The plaintiff was beneficiary under the policy. The insured received fatal injuries in an automobile accident on April 5, 1934, from which injuries he died on April 10, 1934.

The policy provided that the insurance did not cover injuries sustained by the insured while intoxicated, or under the influence of an intoxicant or narcotic, or while violating law.

The defendant denied liability under the policy on the grounds that the insured, Eaton, when he received the injuries that resulted in his death, was driving an automobile while intoxicated or under the influence of intoxicants, and while violating law.

The road on which Eaton was traveling, at the time of the accident, ran from Big Stone Gap eastwardly toward Bristol. The accident occurred about 150 or 200 feet east of a very sharp left-hand curve, coming down-grade. The road, after the curve, leveled out and was straight at the point of the accident for a distance of some 650 feet. At the point of the accident the hard-surface road was 20 feet in width with dirt shoulders on either side approximately 18 inches in width. The accident happened about 7 p. m., the insured's car going over an eight or ten foot embankment. The road was dry and there was no other traffic on the highway at the time of the accident.

There was one eyewitness to the accident, a girl named Dorothy Stapleton. A number of witnesses testified as to the deceased's condition immediately prior to the accident and the evidence was conflicting on this point. There was also a conflict in the testimony of the witnesses as to whether the odor of alcohol could be detected on Eaton's breath after the accident.

There are a number of assignments of error, two of which relate to the refusal of the trial judge to admit certain testimony as a part of the res gestæ We said in the case of Standard Oil Co. of New Jersey v. Neville, 48 F.(2d) 580, 581, "The question as to whether a statement is a part of the res gestæ depends on the circumstances of each case," and in the case of Chesapeake & O. Ry. Co. v. Mears, 64 F.(2d) 291, Judge Parker, of this court, quoted with approval from Commonwealth v. McPike, 3 Cush.(Mass.) 181, 50 Am. Dec. 727, the holding that, "In the admission of testimony of this character, much must be left to the exercise of the sound discretion of the presiding judge." We know of no decision holding to the contrary on this point. An examination of the evidence offered leads us to the conclusion that the judge did not abuse his discretion in refusing to permit its introduction.

Another exception deals with that part of the charge of the court in which the judge said: "Some witnesses said that following the accident they noticed the odor of liquor about Mr. Eaton. Others with equal opportunities of observation and apparently equally attentive to determining that fact, said they noticed nothing of the sort."

We do not think that this expression of the court would constitute harmful error in view of the fact that it was coupled, in the charge, with the statement to the jury that they were the sole judges of the credibility of the witnesses and the weight to be given their evidence.

Another assignment of error relates to the refusal of the court to instruct the jury, as requested by the defendant, that speed in excess of 45 miles an hour was, under the Virginia statute, prima facie a violation of the law. We are of the opinion that failure to give this instruction was harmful error. Section 2154 (109), Code of Virginia, Supplement 1932, provides that any person driving a motor vehicle at a speed exceeding the speed fixed by the statute as lawful, shall be prima facie guilty of reckless driving. Reckless driving under the statute is a violation of the law and the defendant was entitled to the instruction asked for.

The charge of the trial judge to the jury on the question of speed was as follows:

"The evidence as to the manner in which the car from the standpoint of speed, was being operated is, in my mind, Gentlemen, rather unsatisfactory. I wish to say in making that comment, or in commenting upon the weight or effect of any evidence in the case, the Court is merely expressing its own opinion and to point out to you the...