Forshee v. Peninsular Life Ins. Co., 78-1631

• Citation: 370 So.2d 842
• Decision Date: 08 May 1979
• Docket Number: No. 78-1631,78-1631
• Parties: Robin M. FORSHEE, Appellant, v. PENINSULAR LIFE INSURANCE COMPANY, Appellee.
• Court: Court of Appeal of Florida (US)

Page 842

370 So.2d 842

Robin M. FORSHEE, Appellant, v. PENINSULAR LIFE INSURANCE COMPANY, Appellee.

No. 78-1631.

District Court of Appeal of Florida, Third District.

May 8, 1979.

Chambers & Hayes and Charles A. Hayes, Homestead, for appellant.

Mahoney, Hadlow & Adams and William C. Crenshaw, Miami, for appellee.

Before PEARSON and KEHOE, JJ., and EZELL, BOYCE F., Jr. (Ret.), Associate Judge.

PEARSON, Judge.

The appellant, Robin Forshee, sued the appellee, Peninsular Life Insurance Company, claiming the right to payments for accidental death benefits as the beneficiary under a policy issued to her husband, Richard G. Forshee. She received a jury verdict, but judgment was entered for the defendant insurer in accordance with its motion for a directed verdict. The parties agree that the basis for the directed verdict was a holding by the trial court either that the evidence showed without issue of fact that the deceased was committing or attempting to commit an assault or felony at the time he was shot, ¹ or that the plaintiff did not meet her burden of showing accidental death. We hold that there was a jury issue presented on each of these grounds and we reverse with directions to enter judgment upon the jury verdict.

The evidence presented to the jury was that plaintiff Robin M. Forshee is the widow of Richard G. Forshee, who was shot to death on October 14, 1975. She was the only live witness; Carl E. Reddick, the person who shot Richard G. Forshee, testified by deposition. The exhibits placed into evidence consisted of the death certificate and the Peninsular Life Insurance Company policy.

The plaintiff testified that she had been married to Richard G. Forshee since February 3, 1971, and that he had been employed as a body and fender man. She last saw her husband alive at about 10:30 p. m. on October 14, 1975, at the family home, when he had left to go to the home of Jerry Reddick (the nephew of Carl Reddick, who shot the decedent) to see whether he could get some money that he had lent Jerry. Shortly thereafter, the plaintiff was notified that her husband had been shot. There was no gun with his personal belongings; neither did he own a gun nor had the plaintiff ever seen him with a gun.

The plaintiff also testified that when the decedent left home that evening, he was not intoxicated or upset and did not have a gun. She had never seen her husband fight with anyone or argue with anyone, except her. She had never seen him threaten anyone and she described him as a happy person who joked with Jerry, both of whom were in the paint and body shop business.

The death certificate revealed that the decedent died at 12:01 a. m. as the result of "(g)unshot wounds of (the) body."

The defendant insurer then offered the deposition testimony of Carl Reddick, the person who had shot the decedent. He testified that he was lying in his nephew's automobile in the nephew's backyard when he heard another vehicle pull in. He heard the decedent and Jack Gersonder, who had gotten out of the truck, talking. He testified that while lying in the automobile, he heard the decedent say, "Well, make sure we can get out of here in a hurry because I'm going to waste this dude." He also saw something in the back of their Levis which he thought were guns. He saw the decedent and Gersonder enter the house and heard his nephew, Jerry, and the decedent arguing and saw the decedent push Jerry against a wall. He also saw Gersonder with a gun in his hand. He then saw the decedent hit the wall beside Jerry. He testified that the conversation was over a money matter between Jerry and the decedent. He further testified that at this same time he was himself outside for what "must have been . . . seven minutes" looking around for "something to start a war with" and "trying to figure out (what) to do." He then remembered Jerry had a pistol in a drawer in the far bedroom of the house and he thought that he could scare off the decedent and Gersonder with the pistol. He went around to the bedroom window and was there about ten minutes before taking the window out. Billy Reddick (a nephew of Carl) was asleep on the couch and Carl knew that he could not wake him up. He attracted the attention of Brenda Reddick, Jerry's wife, who handed him the pistol out the window. He then went back around the house to the outside kitchen steps where he remained throughout the entire incident.

The two men were arguing in a "two-by-four" kitchen and the decedent was turning around and drinking beer and threatening. Carl then aimed the pistol at the men in the kitchen and said, "Let's go. Get out of there, both of you." Gersonder put his hands up and the decedent allegedly said, "Hey, I'll just kill you too" and walked toward Carl. When the decedent made the comment, "I'll kill you too," Carl shot the decedent in the shoulder while the decedent was allegedly reaching behind his back. The decedent had taken two steps toward the kitchen door when shot. He was inside the kitchen and blood was found in the kitchen. The decedent, who was then walking fast toward the door, was shot a second time in the leg, and then was shot two more times, and thereupon dropped at the back steps. Carl said he first saw a gun sticking out of the decedent's Levis when he fell and at no time did he touch the gun.

Carl...