Gates v. New York Life Ins. Co.
| Decision Date | 10 December 1969 |
| Docket Number | Docket No. 5198,No. 3,3 |
| Citation | 21 Mich.App. 21,174 N.W.2d 862 |
| Parties | Theodore K. GATES and Verna Gates, Plaintiffs-Appellants, v. NEW YORK LIFE INSURANCE COMPANY, Defendant-Appellee |
| Court | Court of Appeal of Michigan — District of US |
Philip A. Clancey, Traverse City, for plaintiffs-appellants.
William R. Brown, Murchie, Calcutt & Brown, Traverse City, for defendant-appellee.
Before LEVIN, P.J., and HOLBROOK and DANHOF, JJ.
Plaintiffs commenced suit against defendant insurance company, as beneficiaries of a life insurance policy on the life of the deceased, alleging that the death of the insured, their son, was 'accidental' under the terms of the insurance policy, and therefore, they were entitled to an additional $5000 arising out of the double indemnity provisions of the policy. It is to be noted that the defendant company before the institution of the suit paid the face amount of the policy which was $5000.
A jury trial was commenced in Benzie county circuit court by the plaintiffs. At the close of the plaintiff's proofs, a directed verdict was entered in favor of the defendant. A motion for a new trial was made and denied, and from this denial the plaintiffs appeal.
On appeal all testimony must be viewed in the light most favorable to the plaintiffs. A review of the record discloses there was no error committed in granting the directed verdict. Since this was an action to recover the double indemnity benefits under the policy the burden of proving that the death of the assured was accidental rested on the plaintiffs, see Dimmer v. Mutual Life Insurance Company of New York (1938), 287 Mich. 168, 283 N.W. 16; Turner v. Mutual Benefit Health and Accident Association (1946), 316 Mich. 6, 24 N.W.2d 534. The standard in this State is whether the death of the deceased was accidental, unforeseen, involuntary or unexpected, that is not according to the usual course of things, or not as expected; and if a result is such as follows from ordinary means, Voluntarily employed, in a not unusual or unexpected way, it cannot be called a result effected by accidental means or accidental death. Turner, Supra. Also, Furbush v. Maryland Casualty Co. (1902), 131 Mich. 234, 91 N.W. 135. See also Hooper v. State Mutual Life Assurance Company of Worchester, Mass. (1947), 318 Mich. 384, 28 N.W.2d 331 which case quotes with approval Furbush, supra, 131 Mich. stating on p. 391, 91 N.W. 135:
'It is a well established rule that where insured is intentionally injured by another, and the injury is Not the result of misconduct or an assault by the insured, but is unforeseen in so far as he is concerned, the injury is accidental within the meaning of accident policies.' (emphasis supplied)
It is obvious from the record that the plaintiffs had not sustained the burden of proof required of them. The deceased knowing full well that he was wanted by law enforcement officers armed himself, and put into operation the sequence of events which resulted in his death. It is clear that his death was not an unforeseen or unexpected happening; to the contrary it was quite predictable that great bodily injury or death will result from such activity. Accordingly, the death of the deceased was not accidental.
Nor, do we think that the court erred in refusing to allow the out of court statement of officer Alcar to be introduced as substantive evidence. It is well established that prior inconsistent statements of a witness can be used only to attack the credibility of that witness. See Rosenberg v. Mageda (1930), 251 Mich. 696, 232 N.W 397; Gabrish v. Morse (1960), 361 Mich. 39, 104 N.W.2d 757.
Affirmed, costs to the appellee.
The plaintiffs, beneficiaries of a life insurance policy, commenced this action to recover a double indemnity payable upon accidental death. The majority affirm a directed verdict for the defendant on the ground that all the testimony showed that the insured, William R. Gates, set in motion a course of events likely to result in death and, thus, his death was not accidental.
Both the majority and I are in agreement that if Gates did, in fact, arm himself and fire at the police officers who had stopped him, his death by a gunshot fired by one of the officers was not accidental. 1 I cannot agree, however, that the jury was bound to believe the testimony of the police officers even though their testimony was essentially undisputed. As will appear, the officers were interested witnesses, their testimony was contradictory and one of them was impeached by a prior inconsistent statement on a crucial aspect of the case.
The plaintiffs established a prima facie case when they proved that Gates was killed by gunshot. There is a presumption that a violent death is accidental. This presumption is not, as defendant asserts, limited to a presumption against suicide. 2 It has been applied in cases where both the plaintiff beneficiary and the defendant insurer were in agreement that a third party killed the person whose life was insured and where, as here, the issue is whether the killing was justified. 3 This presumption is an expedient of the law. It recognizes that dead men tell no tales and that one who kills another is bound--indeed, had better be able--to justify his deed. 4
The presumption that a violent death is accidental is evidence in the case and remains evidence although rebutting evidence is introduced. In deciding whether the rebutting evidence is so overwhelming that a verdict should be directed, the same standard is to be applied as in a case where the plaintiff does not rely on a presumption.
'The standard used to determine the propriety of a directed verdict is the same as if the presumption, as a rule of law, were never involved--namely, a directed verdict against a litigant is proper only if the evidence And permissible inferences therefrom, viewed most favorably to that litigant, leave no room for disagreement thereon among reasonable men.' In re Wood Estate (1965), 374 Mich. 278, 291, 132 N.W.2d 35, 44, 5 A.L.R.3d 1. (Emphasis by the Court.)
In Snow v. National Bank of Ludington (1969), 16 Mich.App. 595, 168 N.W.2d 482, our Court reversed a directed verdict against a plaintiff who relied upon a statutory presumption. We stated that under In re Wood Estate, Supra, common law and statutory presumptions operate in the same manner. In the absence of rebuttal evidence the presumption establishes a mandatory inference. If rebuttal evidence is admitted, the inference is downgraded from a mandatory to a permissible inference. We concluded (p. 597, 168 N.W.2d at 483):
'Only where the rebutting evidence is so overwhelming that all reasonable men must agree that the statutory inference has been overcome may a trial judge properly direct a verdict.'
The testimony of the police officers, if believed, was, indeed, sufficient to overcome the presumption. The jury, however, was not obliged to believe their testimony. As we stated in Snow, where the question of whether the presumption has been overcome depends upon testimony, it is the function of the trier of fact (in that case and this one, the jury) to evaluate the credibility of the witnesses (p. 598) 'on which latter issue the interest of the witnesses should be considered.'
Gates was killed by a police officer, Sheriff George Pelton. Pelton stopped Gates on a traffic charge. Gates drove off when Pelton attempted to arrest him. After a long automobile chase Gates stopped his car. Officer Alcar testified that he and another officer immediately jumped out of the pursuing cruiser and shot out the tires of Gates' car. He said he then observed that Gates had a shotgun and ducked behind Gates' car to reload his pistol; he did not see the shooting of Gates but he heard a series of shots--one shot, then two shots, then two more shots--in rapid succession. He said he observed Sheriff Pelton standing near the left rear door of Gates' car before any of these shots were fired.
Alcar's testimony was impeached by a prior inconsistent statement made by him to the State police on the night of the shooting. In that statement he asserted that Pelton fired the first shot at Gates after Gates turned abruptly in his seat.
Sheriff Pelton's testimony was somewhat contradictory as to the sequence of events. Suffice it to say for this purpose that a one point he testified that Gates fired the first shot as he, Pelton, was moving across the highway toward Gates' car. This, of course, was contradicted by the testimony of officer Alcar that Pelton had reached the left rear door of Gates' car before any shots were fired.
Pelton testified that he fired his first shot at Gates from the left rear of the Gates car and then ran back across the highway, whereupon additional shots were fired. Pelton testified that Gates discharged the shotgun two more times, and then he, Pelton, fired one more shot, his second shot. This was the fatal shot; both officers testified that immediately after the last shot was fired Gates slumped over with a moan. The fatal shot entered Gates' back on the left side just above the armpit and penetrated his heart.
In addition to the difference between Alcar's and Pelton's testimony concerning the sequence of events, the jury had a right to consider the following in deciding whether to adopt Pelton's testimony.
--Pelton testified that after reaching the left rear of Gates' car he decided to run back across the highway to seek cover. The jurors might well have regarded it incredible that an experienced police officer would leave a place of cover (the left rear of Gates' car) and, exposing his rear to a man said to have been armed with a shotgun, run back across a highway ostensibly for the purpose of seeking the cover that he had just left.
--Pelton testified that he fired his first shot from the left rear of Gates' car. The fatal shot entered Gates' body from his left...
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