Aetna Life Ins. Co. v. Dowdle

• Decision Date: 04 February 1971
• Docket Number: 7 Div. 780
• Citation: 287 Ala. 201,250 So.2d 579
• Parties: AETNA LIFE INSURANCE COMPANY, a Corp. v. Estelle P. DOWDLE.
• Court: Alabama Supreme Court

Page 579

250 So.2d 579

287 Ala. 201

AETNA LIFE INSURANCE COMPANY, a Corp. v. Estelle P. DOWDLE.

7 Div. 780.

Supreme Court of Alabama.

Feb. 4, 1971.

Rehearing Denied March 4, 1971.

London, Yancey, Clark & Allen, and Thomas R. Elliott, Jr., Birmingham, for appellant.

Dortch, Allen, Wright & Wright, and Roy D. McCord, Gadsden, for appellee.

COLEMAN, Justice.

The defendant appeals from a judgment for plaintiff in an action on a policy of insurance on the life of Eddie B. Dowdle who died as the result of a gunshot wound.

Plaintiff is the beneficiary under the policy. The complaint contains one count wherein plaintiff claims of defendant $9,000.00 due on the policy whereby defendant insured the life of Eddie B. Dowdle and agreed to pay to plaintiff said sum upon proof that death of the insured had occurred in consequence of bodily injuries effected solely through external, violent, and accidental means. Plaintiff alleges that the insured did die on a certain day in consequence of bodily injuries effected solely through external, violent, and accidental means by being shot with a shotgun, and from which bodily injuries death was the direct result independent of all other causes. Plaintiff acknowledges that defendant is entitled to credit for $4,500.00 paid by defendant on plaintiff's $9,000.00 demand.

Defendant pleaded the general issue in short by consent with leave, etc.

On the trial by a jury, the parties stipulated that the policy was in force and effect at the time of insured's death, that plaintiff is the beneficiary under the policy, and that insured came to his death as the result of '. . . a gunshot wound fired by Lonnie Bagley.'

Plaintiff introduced the policy into evidence and rested her case.

Defendant called Lonnie Bagley as a witness and he testified as to the circumstances of the shooting as hereinafter mentioned. Bagley was the only eyewitness who testified.

Defendant's requested affirmative charge with hypothesis was refused. The jury returned a verdict for plaintiff for $4,500.00, and judgment was entered accordingly. Defendant filed motion for new trial which was overruled. The motion contained the ground that the verdict is not sustained by the great preponderance of the evidence.

Defendant assigns for error the refusal of its requested affirmative charge with hypothesis and the overruling of defendant's motion for new trial. Defendant assigns also the action of the court in sustaining plaintiff's objection to certain evidence which defendant sought to introduce.

1.

Defendant says the assignments of erroraise two points, the first point being:

'1. That the evidence in this case was insufficient as a matter of law to support the verdict of the jury.'

Defendant's contention is that the injury, which caused insured's death, was not effected by means that were accidental as the word, accidental, is used and understood in policies insuring against death resulting from bodily injury effected by external, violent, and accidental means. Stated differently, defendant's contention is that the evidence in the case will not support a finding that insured's death was effected by accidental means because he brought about his own death by voluntarily provoking or entering into an affray with Lonnie Bagley.

'The rule is that when insured is the aggressor, especially with a deadly weapon, and makes such an attack on another as would naturally invite a deadly encounter in resistance of his attack, and as the probable consequence of it, and he is killed by the other while so resisting him, it cannot be regarded as an accidental death, since he voluntarily put his life at stake and deliberately took the chances of getting killed. (Citations Omitted)' O'Bar v. Southern Life & Health Ins. Co., 232 Ala. 459, 462, 168 So. 580, 582, (9).

Bagley testified, in substance, that on the morning of the killing, he and insured met by chance at a cafe; that insured was about six feet tall and weighed 190 to 200 pounds; that the witness Bagley is five feet eight inches tall and weighs 155 pounds; that they had a conversation and one of them proposed that they have a 'little skin game' which is played with cards; that they went to Mandy Patton's room or apartment which was upstairs next door to the cafe; this was between eight and nine a.m. They played for a while until some one came by for insured and he left. They had had no argument or difficulty at that time. They met again around eleven-thirty a.m. 'and took it up again.'

Bagley testified further that insured said he was ready as they went back to Mandy Patton's place and they resumed the game. The testimony indicates that both insured and Bagley had been drinking that morning but not in the presence of each other.

In the course of play, Bagley won a bet but insured would not give Bagley the money. Bagley says insured was wrong, but insured said he was not going to give Bagley the money and Bagley said he was going to have his money. Insured said ". . . you get it the best way you can," and Bagley said, "Okay, I will see you later."

Bagley went home and got his double-barrel shotgun which he loaded and put in his car and went back to Mandy's. When he got back to Mandy's insured had not come back, and Bagley got in his car and pulled off. When Bagley '. . . went around the loop . . .,' and saw insured '. . . coming up through the path,' Bagley stopped the car and got out. Bagley 'hollered' at insured and told him that he, Bagley, wanted his money. Insured kept walking and Bagley 'asked' insured to stop. Bagley had taken his shotgun out of the car and was carrying it. Insured had his hand in his pocket. He just kept walking toward Bagley. Bagley said: "I told you not to keep coming up on me." Bagley started backing up. He could not tell what insured had in his pocket. All Bagley could see was '. . . it looked like he had a point stuck out . . ..'

Insured kept walking. When he '. . . got so close on . . ..' Bagley, Bagley whirled the gun around and shot. He just shot trying to scare insured and to make him stop. The distance between them at that time is not exactly reflected in the testimony but appears to have been a distance not greater than the dimensions of the courtroom. The shot did not hit anything that Bagley knows of but apparently some of the shot hit the porch of a nearby house.

After Bagley fired, the insured made a rush into Bagley and they fell into some weeds where they struggled. The insured had a knife in his hands. When Bagley fell, the shotgun fell beside him. Insured was reaching at the gun and trying to cut Bagley. Insured scratched Bagley three times with the knife. It barely broke the skin. Insured was on top of Bagley. Bagley managed to get the gun in between them and pulled the trigger. The shot struck insured in the neck and apparently he died immediately.

On cross-examination, Bagley testified that, when insured left and put the money in his pocket, Bagley told insured that he, Bagley, was going to get his money, and that Bagley was angry. When insured left Mandy's, Bagley went home and got his gun loaded. He was still angry. He got in his brother's car and drove back to Mandy's place where he stopped and asked if the insured was there. Somebody told Bagley that insured was not there.

Bagley drove off. He was already headed in the direction of insured's house. Bagley testified that he was not going to insured's house but '. . . was going up that road and circle around that circle and go back down to the house.' Bagley said he was driving down a certain street, and '. . . on the next street over here Eddie B. (insured) lived.' (Par. Added) Bagley knew that a certain 'trail' led from a street (apparently the street on which Bagley was driving) over to the street where insured lived. The record indicates that the witness was being examined with reference to a diagram, perhaps on a blackboard, which is not in the record. The testimony apparently is that Bagley saw insured approaching on this 'trail' or path, that Bagley stopped his car at a place where he could not see insured from the driver's seat, that insured could see the tail of the car Bagley had been driving, that Bagley did not completely conceal the car from insured, and that Bagley got out of the car and took the loaded shotgun with him.

Bagley went around a house where he could see insured coming up the path. Bagley had his gun in his hand. He told insured that he, Bagley, wanted his money. The gun was not pointed at insured, '. . . but it was in his direction.' Bagley did not tell insured that Bagley was going to shoot insured. When Bagley left home with the loaded shotgun, he was angry, was looking for insured, and was after his money.

Defendant relies on a rule stated in O'Bar as follows:

'To constitute an accidental death, it must have resulted from something unforeseen, unexpected, and unusual. Carroll v. Fidelity, etc., Co., supra (C.C., 137 F. 1012), or 'which happens as by chance, or which does not take place according to the usual course of things,' or 'without foresight or expection' or 'by reason of some violence, casualty, or vis major to the assured, without his design or consent or voluntary cooperation.' Equitable Accident Ins. Co. v. Osborn, 90 Ala. 201, 206, 9 So. 869, 870, 13 L.R.A. 267.' (232 Ala. at 462, (10), 168 So. at 582.

Defendant says:

'The insured from the commencement of the difficulty which arose at the gaming table, chose the course which was calculated to produce the affray . . . which later developed. He was not an innocent bystander suddenly thrown into a situation in which he had to make a split-second decision to run or defend his life.

'. . .. The insured would not in any sense of the word be free from fault in provoking . . . the altercation. In fact he had intentionally provoked the same by instructing Lonnie Bagley that he would have to get his money, 'the best way you can.' . . ..'

The evidence may well have supported a...