American National Ins. Co. v. Craft, 39476

• Decision Date: 07 February 1955
• Docket Number: No. 39476,39476
• Citation: 77 So.2d 679,222 Miss. 847
• Parties: AMERICAN NATIONAL INSURANCE CO. v. Edd CRAFT.
• Court: Mississippi Supreme Court

Page 679

77 So.2d 679

222 Miss. 847

AMERICAN NATIONAL INSURANCE CO. v. Edd CRAFT.

No. 39476.

Supreme Court of Mississippi.

Feb. 7, 1955.

Cassidy, McLain & Pigott, McComb, for appellant.

Breed O. Mounger, Tylertown, for appellee.

LEE, Justice.

Edd Craft, the beneficiary in an insurance policy on the life of his son, R. Lamar Craft, as plaintiff, recovered a judgment against American National Insurance Company in the sum of $2,000, which included death benefits, both ordinary and accidental, in the sum of $1,000 each, and the company appealed.

The insurance company conceded its liability for the ordinary death benefit, but denied liability for the additional accident benefit. According to the provisions of the policy. The accidental benefit was payable where the death 'resulted directly and independently of all other causes, * * * from bodily injury, * * * effect solely through external, violent, and accidental means * * * evidenced by visible contusion or would on the exterior of the body, * * *.' However, it was not payable if the injury was received '(f) From engaging in any illegal occupation or committing or attempting to commit an assault or felony'.

The sole question was whether or not the death was accidental; and if so, whether a recovery is excluded under paragraph (f), supra, of the policy.

The plaintiff testified that he saw his son alive about 9:00 o'clock on the evening of April 16, 1951. When he saw him again, about 3:30 or 4:00 o'clock the next morning, he was dead. There was a gunshot wound in the right chest and blood was in evidence. The body was lying across a single bed, near a window, inside Bob Lee's tavern. His son's car was parked about 12 or 15 feet from the building. Two bullet holes were in the tavern window, and one in the ventilator glass of the car. Dr. A. B. Harvey testified that the bullet entered the right side of the chest, penetrated the lung and large vessels of the heart, lodged in the spine, and, of course, was the cause of death.

After the plaintiff rested, and the court had overruled a defense motion for a peremptory, the insurance company called James Easterling as a witness. He testified that he, Lamar Craft, and Oscar Hope went to the tavern in Lamar's automobile. They drank beer and some whiskey until closing time, about 12:00 to 12:30 o'clock, when they left. In the meantime, they had seen a car, driven by Mrs. Lee, leave. They drove up the road about a mile when suddenly Lamar turned his car around, saying that he was going to see Hattie Lee Barnes, who was a colored woman, and drove back to the tavern. On the way, they met and passed another car. Upon arrival at the back of the taven, they all got out. Lamar knocked on both back doors and called Hattie Lee a couple of times, and also Leroy. There was no response from the inside. At Lamar's request, Hope went to the front, looked through cracks in the shutters, and returned and told them that Hattie Lee was standing by a cash register. Lamar raised the window and told Hope to go back to the front and watch, that he was going in. The witness begged him not to do so, saying that 'she has probably got a gun'; but that Lamar said he was going inside and was going to have sexual relations with the woman. The witness was holding the window, and when Lamar had gotten inside the window and was sitting on the sill, shots were fired, and he fell forward, with blood spurting from his month. The witness and Hope ran away, went to the home of Ed McCalip, where they called a taxi; and, upon reaching McComb, they reported the occurrence to the police. The witness admitted, on cross-examination, that he, at one time, had said that he did not know why Lamar went back to the tavern. His explanation was that he did not want to tell the truth about the matter, because Lamar had a good name.

Vance Harvey testified in rebuttal for the plaintiff that Easterling had said that he did not know why Lamar went back to the tavern. However, Easterling did say that Lamar went to the back and Hope stayed at the front and that one of them was getting a bucket for the purpose of getting into the window when the shots were fired. To the same effect was the rebuttal evidence of the plaintiff, who also testified that, on one occasion, Easterling said that they went back to get merchandise; on another, that Lamar was getting a bucket at the time; and still another, that he was not killed at the tavern. The plaintiff admitted, on cross-examination, without objection, that both Oscar Hope and James Easterling testified, in the Hattie Lee Barnes murder trial, that Lamar, at the time, was going into the place to see the Negro girl.

Appellee contends that, on account of discrepancies in the testimony of Easterling, it cannot be said who killed Lamar, or why he was killed, or where he was killed; that, as against the deceased, there is the prima facie presumption of right, not wrong, doing; that since the deceased met his death through external and violent means, it must be presumed that the fatal injury was sustained through accidental means; and that the issue was properly submitted to, and decided by, the jury.

It is true that both of these presumptions are recognized in this state. Orgill Brothers v....