Gorham v. Pacific Mut. Life Ins. Co.

• Decision Date: 14 December 1938
• Docket Number: 111.
• Citation: 200 S.E. 5,214 N.C. 526
• Parties: GORHAM v. PACIFIC MUT. LIFE INS. CO.
• Court: North Carolina Supreme Court

200 S.E. 5

214 N.C. 526

GORHAM v. PACIFIC MUT. LIFE INS. CO.

No. 111.

Supreme Court of North Carolina

December 14, 1938

Appeal from Superior Court, Nash County; A. Hunt Parker, Judge.

Action by Mary B. Gorham against the Pacific Mutual Life Insurance Company on a policy of accident insurance. From a judgment of nonsuit, the plaintiff appeals.

Reversed.

DEVIN J., dissenting.

Civil action to recover on a policy of accident insurance.

Upon receipt of the payment in advance of the first annual premium of $52.50, the defendant, on April 6, 1921, issued to Louis Rhodes Gorham a $2500-policy of accident insurance, payable to his wife, plaintiff herein, as beneficiary in case of death of the insured through accidental means, containing among others, the following provisions:

"The Pacific Mutual Life Insurance Company of California hereby insures Louis Rhodes Gorham * * * against loss of life resulting directly and independently of all other causes, from bodily injury effected during the term of this policy solely through accidental means. * * *

4. In the event of accidental death immediate notice thereof must be given the company. * * *

5. Failure to give notice within the time provided in this policy shall not invalidate any claim if it shall be shown not to have been reasonably possible to give such notice and that notice was given as soon as was reasonably possible. * * *

7. Affirmative proof of loss must be furnished to the company * * * within ninety days after the date of such loss.

21. This insurance does not cover * * * suicide, sane or insane. * * *

22. Failure to comply with any of the provisions of this policy shall render invalid any claim under this policy."

It is admitted that all the premiums due on the policy had been paid and that the contract of insurance was in full force and effect on March 8, 1933, when the insured was found dead in his office as the result of a pistol-shot wound. The bullet had entered the back of his head, a little behind and slightly above his right ear, and was afterwards located just inside and against the skull, near the left eye.

On the trial, the court announced that as plaintiff had shown a violent death, the evidence would appear to be sufficient to warrant the inference of accidental death, rather than suicide, and that in this respect, the case would seem to be one for the jury. Counsel on both sides agreed that this was a correct statement of the law applicable to the case.

It is in evidence that on September 5, 1934, I. T. Valentine, attorney for the plaintiff, addressed a letter to the defendant "making claim on account of accidental death under this policy", and requesting blanks upon which to make formal application for the insurance benefit. The defendant answered on September 13, 1934, with an equivocal reply; no blanks were furnished; and complete information was asked as to the date and exact cause of insured's death. J. Beach Rhodes, Junior Vice-President and Superintendent of the claim department of the defendant company, admitted on cross-examination that he knew the date and what had been stated as the apparent cause of death when this answer was written; that such information came from certified copy of the death certificate of Dr. Gorham, which was received by the defendant as early as June 16, 1933, and that "we simply made a Yankee answer and asked him for further particulars from his side." He further testified: "This death certificate came in from our claim representative in North Carolina. It shows as a cause of death: 'Pistol-shot wound of the head entering the parietal region on right side. Apparently self-inflicted. * * * Suicide."'

This action was instituted on February 25, 1935.

In explanation of plaintiff's delay in giving the defendant notice of the death of the insured, there is evidence tending to show that Mrs. Gorham suffered a physical and mental collapse, when informed of the death of her husband and the circumstances surrounding it, and that within a few weeks thereafter it became necessary to commit her to the hospital for the insane at Raleigh, N. C., where she remained in confinement until August 19, 1933, when it was found that her being at large would not be injurious to herself or dangerous to the community, she was released on probation. This status continued until May 16, 1934, when a certificate of discharge was issued by the superintendent of the hospital at the request of some banker in Rocky Mount. According to the testimony of her physician and members of her family she did not recover her sanity or her physical health until after an operation and hospital treatment which she underwent in April, 1935.

Dr. Richard H. Speight testified: "In my opinion at the time I first saw Mrs. Gorham in April, 1933, a month after the death of Dr. Gorham, and until this operation (in April 1935) her mental and physical condition was not such as to enable her to read a contract or several pages of insurance policy and to comprehend and know what was required of her by the contract of the policy."

Josephine Gorham testified: "From the time of my father's death until the time of mother's operation I would not say she was of a mental condition to transact any business. She was not able to attend to any business. The bank carried on most of her business. I don't think she did any business that amounted to anything of importance. * * * I thought she was insane. * * * Her condition which I have described continued from the time of my father's death until the operation in 1935."

In reply, the defendant offered evidence tending to show that on March 21, 1933, Mrs. Gorham and the Planters National Bank & Trust Company qualified as co-executors of her husband's estate, and that they have continuously acted as executors ever since. That after Mrs. Gorham's release from the hospital for the insane she carried on numerous business transactions; executed with her co-executor proofs of death on life insurance policies payable to the estate (though the co-executor admits that she neither read nor knew the contents thereof when she signed them); executed divisional deeds with her brothers and sisters in the fall of 1933, etc.

The court being of opinion that the plaintiff's failure to give the defendant "immediate notice" of her husband's death, and that adequate excuse for such failure had not been shown, entered judgment of nonsuit, from which the plaintiff appeals, assigning errors.

L. L. Davenport, of Nashville, and W. H. Yarborough, of Louisburg, for appellant.

Battle & Winslow, of Rocky Mount, for appellee.

STACY Chief Justice.

It is admitted that the policy in suit was in full force and effect on the date of the death of the insured. Recovery is resisted on two grounds: First, suicide; second, failure to give immediate notice of insured's death and furnish proof of loss within ninety days thereafter.

First. It was the opinion of the trial court, concurred in by counsel on both sides at the time, that the evidence of violent death, without more, was sufficient to carry the case to the jury on the issue of accidental death or death through accidental means within the meaning of the policy. Parker v. Ins. Co., 188 N.C. 403, 125 S.E. 6, 39 A.L.R. 1085; Kinsey v. Ins. Co., 181 N.C. 478, 106 S.E. 136; Wharton v. Ins. Co., 178 N.C. 135, 100 S.E. 266; Thaxton v. Ins. Co., 143 N.C. 33, 55 S.E. 419; Harris v. Ins. Co., 204 N.C. 385, 168 S.E. 208; Mehaffey v. Ins. Co., 205 N.C. 701, 172 S.E. 331; Scott v. Ins. Co., 208 N.C. 160, 179 S.E. 434.

The defendant now urges a different view, citing Hill v. Ins. Co., 150 N.C. 1, 63 S.E. 124; N.Y. Life Ins. Co. v. Gamer, 303 U.S. 161, 58 S.Ct. 500, 82 L.Ed. 726, 114 A.L.R. 1218; Del Vecchio v. Bowers, 296 U.S. 280, 56 S.Ct. 190, 80 L.Ed. 229; Watkins v. Prudential Ins. Co., 315 Pa. 497, 173 A. 644, 95 A.L.R. 869, and particularly Jefferson Standard L. Ins. Co. v. Clemmer, 4 Cir., 79 F.2d 724, 103 A.L.R. 171 and note, in support of its present position; distinguishing, Hedgecock v. Ins. Co., 212 N.C. 638, 194 S.E. 86, and Spruill v. Ins. Co., 120 N.C. 141, 27 S.E. 39, as involving life insurance policies rather than accident contracts of insurance; and suggesting that Wharton v. Ins. Co., supra, should be reconsidered as the distinction between life insurance and accident insurance was not then discusssed or brought to the attention of the Court in any way. See Cooley's Briefs on Insurance, Vol. 7 (2d Ed.), 6022; Moore v. Accident Assur. Corp., 173 N.C. 532, 92 S.E. 362; Rand v. Ins. Co., 206 N.C. 760, 174 S.E. 749.

The rule is, that an appeal ex necessitate follows the theory of the trial. Dent v. Mica Co., 212 N.C. 241, 193 S.E. 165; Keith v. Gregg, 210 N.C. 802, 188 S.E. 849; In re Parker, 209 N.C. 693, 184 S.E. 532. Having tried the case upon one theory, the law will not permit the defendant to change its position, or "to swap horses between courts in order to get a better mount in the Supreme Court." Weil v. Herring, 207 N.C. 6, 175 S.E. 836, 838; Holland v. Dulin, 206 N.C. 211, 173 S.E. 310. "The theory upon which a case is tried must prevail in considering the appeal, and in interpreting a record and in determining the validity of exceptions." Brogden, J., in Potts v. Ins. Co., 206 N.C. 257, 174 S.E. 123, 124.

But for the ruling of the trial court in respect of the sufficiency of the evidence to carry the case to the jury on the issue of accidental death or death through accidental means, and the ready acquiescence therein by counsel, the plaintiff might have pursued a different course. Midgett v. Nelson, 212 N.C. 41, 192 S.E. 854; Morgan v. Benefit Society, 167 N.C. 262, 83 S.E. 479. In fact, the ruling of the court in this respect is not challenged by the appeal. The nonsuit, therefore,...