Continental Cas. Co. v. Meadows

• Decision Date: 19 March 1942
• Docket Number: 6 Div. 794.
• Citation: 242 Ala. 476,7 So.2d 29
• Parties: CONTINENTAL CASUALTY CO. v. MEADOWS.
• Court: Alabama Supreme Court

7 So.2d 29

242 Ala. 476

CONTINENTAL CASUALTY CO. v. MEADOWS.

6 Div. 794.

Supreme Court of Alabama

March 19, 1942

Appeal from Circuit Court, Jefferson County; Leigh M. Clark Judge.

London & Yancey, Geo. W. Yancey, and Fred C Koenig, Sr., all of Birmingham, for appellant.

Taylor & Higgins and Waldrop Windham, all of Birmingham, for appellee.

GARDNER Chief Justice.

Plaintiff was the named beneficiary in a health and accident insurance policy issued by defendant company to her husband, Richard C Meadows, and insuring against loss of life resulting from bodily injuries, effected solely through accidental means. The insured, Richard C. Meadows, did, on April 28, 1939, and while this policy was in force, receive bodily injuries (gun shot wounds), which resulted in his death. The defendant company declined to pay the loss, hence this suit, resulting in a judgment for the plaintiff, from which defendant appeals.

Plaintiff, after offering in evidence the policy of insurance, produced proof that the insured died as a result of external and violent means, and no more, and thus made out her prima facie case for recovery. Inter-Ocean Casualty Co. v. Foster, 226 Ala. 348, 147 So. 127.

The following facts were then developed by the testimony of witnesses offered by defendant. Near noon of April 28, 1939, Meadows and one Payne went to a hotel in Birmingham and secured adjoining rooms. There is much detail of proof as to the two women who met these men at the hotel where they remained that afternoon. It is clear a Mrs. Carter was Meadows' companion and that she and Meadows secured another married woman as Payne's "date". Payne testifies Meadows drank heavily that afternoon, and we are persuaded subsequent events fully corroborate his statement. Payne later in the afternoon carried both the women home in his car. When Payne was leaving the hotel, Meadows was across the bed and asked Payne "if he had lost my friendship", to use the language of the witness.

Meadows and Mrs. Carter had finally engaged in much quarrelling. About seven o'clock the same afternoon, and before dark, the husband of Mrs. Carter reached their apartment, and he states his wife and fifteen year old son were then at home. The telephone rang twice, but Carter did not hear any of the first conversation. But he answered the second call and a man's voice asked to speak to Junior. Carter told his wife to answer it, and listened to the conversation through an extension telephone in another room. He heard the same male voice say: "Honey, what made you do me that way", to which she responded she did not want to talk to him, that her "husband was at home". The voice answered "he was coming over there, if she did not meet him downstairs". She told him not to come. In a short time thereafter a man appeared at the apartment. The boy was away at that time, but Carter and his wife were there. The man who so appeared was Meadows, the insured. He did not knock on the door, but "just walked on in the door", and into the living room. Carter was seated and a pistol on the mantel was some five or six steps away.

Meadows asked for Payne and Carter told him no such person lived there, but he replied he knew "damn well there was". Carter insisted there was a mistake and asked Meadows to leave, that he was in the wrong place and best thing to do was to get out, pushing him out of the door. Carter closed the door, but had no key and tried to hold the door with his foot as Meadows made effort to re-enter. Carter reached and got the pistol and when Meadows entered the second time Carter had the gun in his hand. Carter again told him he was in the wrong place and to get out, to which he replied he knew " * * * well he was in the right place", that "Payne is here and I am going to find him or tear up the * * * Joint". Carter testifies that Meadows then started towards him and he "shot down at the floor to scare him off", and that when Meadows appeared to "grab the gun" he switched hands with the gun, grappled with him and "pulled loose from him".

Carter further states that after he shot in the floor Meadows turned around "as though reaching for a gun," and with an oath and vile epithet said "I am going to get you" and that when this was said he, Carter, jumped behind the door "and started to shoot where he last saw Meadows standing". Carter insists all of the time Meadows had not walked out of the apartment "but was a little bit further in the door--further in the room".

The body of Meadows was next seen at the landing leading to Carter's apartment, some seventeen steps below. There were three bullet holes in his back and the course of the bullets was downwards. Carter further testifies that when he fired the first shot into the floor Meadows was "partly facing him and then he partly turned his side", and that the other times he shot he fired where he had last seen Meadows standing, but without seeing him. He, Carter, was "over behind the door". The last time he saw him after firing in the floor to frighten him, was when he "looked down and saw his body laying at the foot of those 17 steps".

When the officer reached the body of Meadows he had evidently been dead several minutes. Exactly the length of time no one states. No weapon was found on the body and the officer says he detected no odor of whisky. But he further states that you get the "odor of liquor from a man's clothes or from his breath because he is breathing, you smell it when he breathes". Viewed in the light of these statements we do not think that the negative testimony of the officer to the effect he detected no odor of liquor on the body of Meadows can be considered as contradictory of the positive testimony of Payne as above outlined, which clearly discloses a condition of intoxication on Meadows part. Nor do we find anything unreasonable in Payne's statement. That it was an afternoon of debauchery is plain enough and intoxicating liquor played its part. Payne himself did not drink, so he says, and counsel brands this statement as false and absurd. There is nothing in this record to indicate to the contrary and the matter of drink was a mere incident. Nor would Payne disclose the name of his companion, and it is evident that if he in fact knew her name he feared for his life if so disclosed. He was then unmarried, though married at the time of trial.

But considering all of the proof we are persuaded the conclusion is unescapable that Meadows was in fact intoxicated when he went to the Carter apartment over the protest of Mrs. Carter who had informed him her husband was at home.

One of the conditions in the policy here sued upon was that it did not cover loss "if injury is sustained while the insured is under the influence of any intoxicant". This was one of the issues in the case, and here argued by appellant as one of the reasons defendant was due the affirmative charge with hypothesis, as duly requested.

In discussing a like provision in an insurance policy this Court in Standard Life & Accident Ins. Co. v. Jones, 94 Ala. 434, 10 So. 530, 532, observed:

"But the phrase, 'under the influence of intoxicating drinks,' as used in policies of this character and in this connection, has a legal significance, differing from the popular one, and implying such influence as in reality amounts to intoxication. In a well-considered case it was said by the supreme court of New York that 'to be "under the influence of intoxicating liquors," within the meaning of this policy, the insured must have drunk enough to disturb the action of the physical or mental faculties, so that they are no longer in their natural or normal condition.' When, therefore, the defendant imposed upon persons insured by it the condition that it would not be liable when death or injury should happen while the insured was under the influence of liquor, the intention manifestly was to require the insured to limit its use in such a degree as that he retained full control over his faculties of mind and body. While he did so, the company was reasonably secure against the insured exposing himself unnecessarily to dangers from his own acts or the acts of others, produced 'by his own irritating or offensive conduct or language,' or, we may add, as applicable to the present case, produced by his failure or inability to conserve his own safety consequent upon the influence exerted by the liquor to the impairment of his faculties. Shader v. [Railway Pass.] Assurance Co., 5 B...