Gray v. State Capital Life Ins. Co., 161

• Decision Date: 22 March 1961
• Docket Number: No. 161,161
• Citation: 254 N.C. 286,118 S.E.2d 909
• Court: North Carolina Supreme Court
• Parties: Marjorie GRAY, formerly Marjorie Clark, v. STATE CAPITAL LIFE INSURANCE COMPANY.

Page 909

118 S.E.2d 909

254 N.C. 286

Marjorie GRAY, formerly Marjorie Clark, v. STATE CAPITAL LIFE INSURANCE COMPANY.

No. 161

Supreme Court of North Carolina.

March 22, 1961

Horn & West, Shelby, for plaintiff appellant.

Allen, Hipp & Steed, Raleigh, Falls, Falls & Hamrick, Shelby, for defendant appellee.

DENNY, Justice.

The plaintiff assigns as error the admission in evidence in the hearing below of a statement made by the insured to an officer who arrived at the scene of the shooting a few minutes after it occurred. The officer found Clark lying on the ground at the point where he had been shot and inquired of him as to what happened. He said: 'We tried to break in and I got shot.'

Spontaneous utterances, in order to be a part of the res gestae, must be made 'during the happening of the main transaction or immediately and instantly after the transaction and in direct connection with it. They must be forced out, as it were, as the utterance of truth; they must be declarations as to something being done, and not as to what has been done. ' Bumgardner v. Southern R. R., 132 N.C. 438, 43 S.E. 948, 950; Coley v. Phillips, 224 N.C. 618, 31 S.E.2d 757; Johnson v. Meyer's Co., 246 N.C. 310, 98 S.E.2d 315.

Since some time elapsed between the shooting and the arrival of the officer who interrogated Clark, the statement was not admissible as a part of the res gestae. However, we think this statement was admissible as a declaration against interest.

The policy of insurance involved, in addition to the death benefits provided therein, contains provisions for hospital benefits and nursing fees, not exceeding $300 for each, if such hospital benefits and nursing fees are required as the result of an accident. The policy also provides for the payment of an amount not exceeding $50 for physician's or surgeon's fees, if such fees are required as the result of such accident. Provision is further made for the payment of a weekly income of $50 for four weeks if the insured is confined in a hospital as the result of an accident, provided such accidental injuries do not result in any of the losses provided for in Part I of the policy. Moreover, the insured reserved the right to change the beneficiary in the policy without the consent of the beneficiary. Therefore, the plaintiff had no vested interest in this policy at the time the statement under consideration was made. Pollock v. Household of Ruth, 150 N.C. 211, 63 S.E. 940; Wooten v. Order of Odd Fellows, 176 N.C. 52, 96 S.E. 654.

In Whitford v. Insurance Co., 163 N.C. 223, 79 S.E. 501, a written note from the insured to his wife, in which it appeared the insured was contemplating suicide, was held to be properly admitted as a declaration against interest in an action brought to recover on a life insurance policy.

Likewise, in Schaffner v. Equitable Life Assur. Soc., 290 Ill.App. 174, 8 N.E.2d 212, which involved an action upon the double indemnity provision in a life insurance policy, it was held that statements of the insured made prior to his death, after he had been shot by an officer, in which the insured admitted he had entered into a conspiracy to commit burglary and was upon the premises to be robbed at the time he and his accomplice were apprehended, was held to be admissible as a declaration against interest. Smith v. Moore, 142 N.C. 277, 55 S.E. 275, 7 L.R.A.,N.S., 684; Benefit Ass'n of Railway Employees v. Armbruster, 221 Ala. 399, 129 So. 78; Brown v. Mystic Workers of the World, 151 Ill.App. 517.

It is said in 31 C.J.S. Evidence § 218(b), p. 960, et seq.: 'Where a declarant is unavailable as a witness because of his death, it is well settled that evidence may, in a proper case, be received of his declarations against his interest, whether or not such declaration are part of the res gestae. The absence of privity between declarant and the parties to the suit does not preclude the admission of his declarations provided they were adverse to his interests. ' See also 20 Am.Jur., Evidence, Section 556, page 467, et seq.

The plaintiff is relying on the case of Evans v. Junior Order, 183 N.C. 358, 111 S.E. 526, as authority for the exclusion of the insured's declaration in this case. We think the cases are distinguishable and that the Evans case is not controlling on the facts in the present case. This assignment of error is overruled.

The second assignment of error is based on the plaintiff's objection to the verdict, the denial of her motion for a new trial, and to the signing of the judgment based on the verdict.

Therefore, the question posed for determination is whether or not the insured's death was the result of accidental means within the terms of the policy.

Our Court has pointed out in a number of decisions that there is an important...