Davis v. Colonial Life & Acc. Ins. Co., 7529SC391

• Decision Date: 17 December 1975
• Docket Number: No. 7529SC391,7529SC391
• Court: North Carolina Court of Appeals
• Parties: Gladys A. DAVIS v. COLONIAL LIFE & ACCIDENT INSURANCE COMPANY.

Page 149

220 S.E.2d 149

28 N.C.App. 44

Gladys A. DAVIS v. COLONIAL LIFE & ACCIDENT INSURANCE COMPANY.

No. 7529SC391.

Court of Appeals of North Carolina.

Dec. 17, 1975.

Certiorari Denied by Supreme Court Feb. 3, 1976.

Carnes & Rollins by Everette C. Carnes, Marion, for plaintiff appellee.

Dameron & Burgin by Charles E. Burgin, Marion, for defendant appellant.

VAUGHN, Judge.

We note at the outset that there are no exceptions to the court's findings of fact. The facts so found are sufficient to support the conclusion that the insured's death was accidental within the meaning of the policy, i.e. it resulted from an unexplained gunshot wound.

Defendant's assignment of error directed to the court's failure to grant its motions for dismissal, 'judgment notwithstanding the verdict,' a new trial and its exceptions to the entry of the judgment do not present the question of the sufficiency of the evidence to support the findings of fact made by the court.

Defendant brings forward an assignment of error based on the judge's ruling on the competency of the child as a witness. The trial judge was wrong when he said that the child could not testify because of his lack of understanding of 'divine punishment.' It clearly appears that the child expressed an understanding of his duty to tell the truth. He told the judge that if he did not tell the truth he expected to be punished by his mother, the court and by God. If he lacks understanding of the precise nature of the punishment to be expected from the latter, it is, perhaps, a dilemma shared by many who are much older than he is. Moreover, it is highly questionable whether a disqualification as a witness because of either lack of understanding of, or disbelief in divine punishment could, in a proper case, withstand an attack on constitutional grounds.

The question now is whether the error prejudicially affected the outcome of the trial. The judge tried the case without a jury. He heard the child's testimony and it is in the record. He referred to the testimony in the judgment and makes, what might be called, alternative findings which are, in part, as follows:

'The infant's testimony seems to establish that the insured had quit the assault on his wife, the infant's mother, when the bedroom light came on and was WALKING toward the infant. The evidence does not disclose for what reason the father did so. It would appear to be fair inference that the father intended to remove the dangerous weapon from the possession of the youth who was untrained in the use of firearms for the protection of the youth, his mother, or himself. It would not appear under any circumstances that the father expected the child to shoot him.'

The quoted alternative finding explains the 'unexplained gunshot wound' and discloses that it was the result of the intentional act of another. That the death wound on deceased was inflicted by the intentional act of another, standing alone, does not bar recovery under the terms of the policy before us. The policy does not have a clause excluding injury by the intentional act of another. Bone v. Insurance Co., 10 N.C.App. 393, 179 S.E.2d 171.

The judgment before us includes the following:

"In policies . . . calling for construction of insurance coverage case of death by 'external . . . and accidental means' . . . the true test...