Flannagan v. Provident Life & Accident Ins. Co.

• Decision Date: 18 October 1927
• Docket Number: No. 2634.,2634.
• Citation: 22 F.2d 136
• Parties: FLANNAGAN v. PROVIDENT LIFE & ACCIDENT INS. CO. et al.
• Court: U.S. Court of Appeals — Fourth Circuit

22 F.2d 136 (1927)

FLANNAGAN v. PROVIDENT LIFE & ACCIDENT INS. CO. et al.

No. 2634.

Circuit Court of Appeals, Fourth Circuit.

October 18, 1927.

S. H. Sutherland and George C. Sutherland, both of Clintwood, Va., for plaintiff in error.

John A. Chambliss, of Chattanooga, Tenn. (Sizer, Chambliss & Sizer, of Chattanooga, Tenn., and Morton & Parker, of Appalachia, Va., on the brief), for defendants in error.

Before PARKER and NORTHCOTT, Circuit Judges, and ERNEST F. COCHRAN, District Judge.

NORTHCOTT, Circuit Judge.

This is an action at law for recovery on two accident insurance policies, one issued by the Provident Life & Accident Insurance Company, a Tennessee corporation, and one issued by the Employers' Indemnity Corporation, a Missouri corporation, both issued to T. H. Flannagan, with his wife, Emma N. Flannagan, the plaintiff in error and plaintiff below, as beneficiary.

On the night of April 28, 1926, the deceased, T. H. Flannagan, was injured while driving an automobile between the towns of Haysi and Clintwood, in the Western district of Virginia. Prior to leaving Haysi he spent the evening at a hotel there, and, according to the evidence in the case, was drinking to such an extent that he was unquestionably intoxicated. This fact was testified to by a number of witnesses and denied by none. On leaving Haysi, friends endeavored to persuade him not to drive the car; but he went ahead, and it was reported that within a short distance he ran into the abutment of a bridge, but without serious injury to his car, and he proceeded on his way for a distance of about five or six miles, when at a curve in the road he ran straight ahead over the bank and was seriously injured. He was taken to a hospital, where he was treated, but was afterward released, going to his home, where on May 8, 1926, he suddenly died. The evidence tended to show that his death was a result of his injuries in the automobile accident.

The policy issued by the defendant company, the Provident Life & Accident Insurance Company, contains the following provisions: "This insurance does not cover fatal or nonfatal injuries received by the insured * * * while under the influence of intoxicants or narcotics; * * * while violating any law."

The policy issued by the Employers' Indemnity Corporation, contained the following paragraph:

"This insurance does not cover * * * accidents encountered while insured is intoxicated or under the influence of intoxicants or narcotics, whether such condition contributed either directly or indirectly to the accident; * * * accident encountered while violating law."

The law in the state of Virginia, where the deceased resided and where the accident happened, made it an offense to run an automobile while under the influence of intoxicants, and is found in the act of the Assembly of Virginia for 1924 (chapter 407), known as the "prohibition law."

Section 25 of this act reads as follows:

"Section 25. Running Automobiles, Engines et cetera, While Intoxicated — How Punished. — It shall be unlawful for any person to drive or run any automobile, car, truck, engine, or train while under the influence of intoxicants. If any person violates the provisions of this section he shall be guilty of a misdemeanor punishable by a fine of not less than one hundred dollars nor more than one thousand dollars, and imprisonment for not less than thirty days nor more than one year, for the first offense; provided the court in a proper case may suspend the jail sentence. Any person convicted of a second or subsequent offense shall be subject to imprisonment for not less than six months nor more than two years. The judgment of conviction shall of itself operate to deprive him of his right to drive any such vehicle or conveyance for a period of one year from the date of such judgment. If any person so convicted shall, during the year, drive any such vehicle or conveyance, he shall be guilty of a misdemeanor; but nothing in this section shall be construed as conflicting with or repealing any ordinance or resolution of any city, town or county, heretofore or hereafter adopted, which restricts still further the rights of such person to drive any such vehicle or conveyance."

Section 80 of the same act defines who may be deemed intoxicated, and reads as follows:

"80. Who Deemed Intoxicated — Of Intemperate Habits. — Any person who has drunk enough ardent spirits to so affect his manner, disposition, speech, muscular movement, general appearance or behavior, as to be apparent to observation, shall be deemed for the purposes of this act, to be intoxicated, and if he shall continue to use ardent spirits as a beverage during the period of one year, so as to produce the above results from time to time, he shall be deemed a person of intemperate habits within the meaning of this act."

Suit was brought in the District Court of the Western District of Virginia by the beneficiary named in the two policies, and on the trial of the case the judge below directed a verdict for the defendants, and, after overruling the motion of the plaintiff to set aside the verdict and grant a new trial, gave judgment in favor of the defendants for the cost, from which action of the trial court the plaintiff sued out this writ of error.

Three main points are raised on behalf of the plaintiff below, who will be referred to as plaintiff here: First, that the court erred in directing a verdict for the defendants; second, that the court erred in not allowing a witness to answer certain question propounded to him as to statements made by the deceased after the accident, it being claimed that said statements were a part of the res gestae; and, third, that there was evidence tending to show that the steering apparatus of the automobile, driven by the deceased at the time of his death, was defective, and that on this point the case should have been allowed to go to the jury.

It may be assumed that there was evidence upon which a jury could have based a finding that Flannagan came to his death by reason of the accident, which occurred on April 28, although he had left the hospital and died at his home on May 8 following.

In the case of Anderson et al. v. Southern Ry. Co., 20 F.(2d) 71, decided by this court, on June 3, 1927, it was held: "The rule in federal courts is that, where there is no conflict in the evidence, or where no materially different inferences may be reasonably drawn from the evidence, a verdict in accordance with the law may be directed. Delk v. Railroad, 220 U. S. 587, 31 S. Ct. 617, 55 L. Ed. 590."

In this case Mr. Justice Harlan says: "The rule upon that subject is well settled by the authorities. It is that, `when the evidence given at the trial, with all inferences that the jury could justifiably draw from it, is insufficient to support a verdict for the plaintiff, so that such a verdict, if returned, must be set aside, the court is not bound to submit the case to the jury, but may direct a verdict for the defendant.'"

See, also, Small Co. v. Lamborn Co., 267 U. S. 248, 45 S. Ct. 300, 69 L. Ed. 597, citing Improvement Co. v. Munson, 14 Wall. 442, 20 L. Ed. 867; Pleasants v. Fant, 22 Wall. 116, 22 L. Ed. 780; Bowditch v. Boston, 101 U. S. 16, 25 L. Ed. 980; County Commissioners v. Beal, 113 U. S. 227, 5 S. Ct. 433, 28 L. Ed. 966; Delaware, etc., R. R. v. Converse, 139 U. S. 469, 11 S. Ct. 569, 35 L. Ed. 213; and C., M. & P. Ry. v. Coogan, 271 U. S. 472, 46 S. Ct. 564, 70 L. Ed. 1041, citing B. & O. R. R. Co. v. Groeger, 266 U. S. 521, 45 S. Ct. 169, 69 L. Ed. 419.

Applying this principle, it seems clear that the learned trial judge acted properly in directing the verdict. The evidence shows conclusively that the deceased was drunk immediately before starting upon the journey that ended in his death, and had been in an intoxicated condition for some time prior thereto. The uncontradicted statements show that he staggered when he walked, that he was boisterous, and that he fell over a woman in attempting to show her some papers. Deceased was importuned by those present not to undertake to drive the car, and shortly after he started out it was reported that he had run into the abutment of a bridge, but was able to continue his journey. One of the witnesses started after him, but returned upon finding that he had gone on. The necessary inference from the evidence in the case is not only that the deceased at the time was under the influence of intoxicants, but that he was intoxicated. Had he been intoxicated to any greater degree than the evidence showed that he was, he would probably not have been killed, for he would have been unable to travel at all.

Courts must necessarily recognize modern conditions. The great changes that have taken place in recent years in the method of travel, the largely increased use of motor vehicles, the great improvement in highways, and the resulting great increase in danger, not only to themselves, but to others who travel the highways, through persons driving motor vehicles while not in possession of their normal...