Gulf Life Ins. Co. v. Nash

• Citation: 97 So.2d 4
• Parties: GULF LIFE INSURANCE COMPANY, Appellant, v. Frances H. NASH, Appellee.
• Decision Date: 31 July 1957
• Court: Florida Supreme Court

Page 4

97 So.2d 4

GULF LIFE INSURANCE COMPANY, Appellant, v. Frances H. NASH, Appellee.

Supreme Court of Florida.

July 31, 1957.

Rehearing Denied Oct. 7, 1957.

Harris, Barrett, McGlothlin & Dew, St. Petersburg, for appellant.

Mann, Harrison, Roney, Mann & Masterson, St. Petersburg, for appellee.

PER CURIAM.

Chief Justice TERRELL, Justice HOBSON, Justice ROBERTS, Justice DREW, Associate Justice BUFORD and District Judge ALLEN agree to the portion of the opinion by Justice THOMAS which affirms the judgment of the lower court on the ordinary life policy.

Chief Justice TERRELL, Justice HOBSON, Justice ROBERTS, Associate Justice BUFORD and District Judge ALLEN agree to the opinion by Justice DREW which affirms the judgment of the lower court both as to the life policy and the accident policy.

Justice THOMAS dissents from the portion of the opinion by Justice DREW which affirms the judgment with respect to the accident policy.

It is thereupon ordered that the judgment of the lower court be

Affirmed.

TERRELL, C. J., HOBSON, ROBERTS, and DREW, JJ., BUFORD, Associate Justice, and ALLEN, District Judge, concur.

THOMAS, Justice.

The appellant issued to Claude M. Nash, Jr., a special accident policy by which it agreed to pay the beneficiary a certain amount if the insured should meet his death as a 'result of bodily injury caused solely by external, violent and accidental means' and also issued to him an ordinary life policy by which it agreed to pay the beneficiary a certain sum upon proof of the death of the insured.

The appellee, eventual beneficiary, brought this action alleging that Claude M. Nash, Jr., died by accidental means and claiming the amounts of both policies. In an answer the appellant denied any liability on either contract except for return of the premiums paid on the life policy, and as a defense to the claim based on that policy plead the condition it contained that '[i]f the Insured shall within two (2) years from the date hereof die by his own hand or act, * * * the only amount payable hereunder shall be a sum equal to the premiums paid thereon, with interest at the rate of six per cent (6%) per annum.' It was averred, in respect of the ordinary life policy, that the insured had died by his own hand within two years after the issuance of the policy; in respect of the accident policy, it was denied that the insured had met his death by accidental means.

When the allegations of the pleadings are distilled, we find that the lone issue is the manner in which the insured died. Although it is true that if he killed himself intentionally there could be no recovery under either policy, it does not follow that if the insured did not actually commit suicide, recovery on both policies was proper. The obligation of one policy and the condition of the other are not so closely related, or inseverable, that recovery should be allowed on both or neither.

At the outset we should say that according to the authorities we have examined, the words death 'by his own hand or act' should not be construed literally, but to mean death as a result of an intent on the part of the insured to take his own life. Fleetwood v. Pacific Mut. Life Ins. Co., 246 Ala. 571, 21 So.2d 696, 159 A.L.R. 171.

It is true, as appellant asserts, that it was appellee's burden to prove, in support of the claim based on the accident policy, that death of the insured came by accidental means. Mutual Life Ins. Co. of New York v. Johnson, 122 Fla. 657, 166 So. 442. The appellant states in its brief that it does not appear to make much difference whether, under the life policy, it was the burden of the appellant to prove suicide or the burden of the appellee to prove that the death was one covered by the policy, but, we think, in respect of this policy, that it was incumbent on the appellee only to establish death and that it was appellant's burden to prove that recovery should be defeated by existence of the condition we have already quoted.

That Claude M. Nash, Jr., short himself there is no doubt; the points in controversy are (1) whether or not be intended suicide, and (2) if he did not so intent, whether or not his death came from 'accidental means.' He fired the pistol in the presence of a young man and two young women. Two other men were in an adjoining room. The insured took the weapon from a table drawer, placed it against his chest, pulled the trigger twice and the gun 'snapped'; the third time he pressed the trigger, the gun fired and Nash was killed almost instantly. We will presently elaborate on these facts.

Testimony, obviously believed by the jury, in which were detailed the movements of the insured and his behavior for many hours preceding his death was sufficient basis for the conclusion that Nash was not in such mental state that he would deliberately kill himself in the presence of three companions and in the hearing of two others. So we do not disturb the judgment insofar as it relates to the claim based on the ordinary life policy. Death was established and the appellant failed to prove suicide.

The remainder of the judgment, founded on the so-called accident policy is another matter. To say that there was no suicide does not mean ipso facto, that the nature of the death was such that liability on the accident policy became fixed. The liability of the appellant on that contract could only be established by preponderance of evidence introduced by the appellee that Nash died by 'accidental means.'

When the young people gathered at the apartment, there was much chatter and giggling. The landlady, who described the noise as 'teen-age prattle', started to the apartment to see if she could not prevail on the group to be more quiet. The insured, at a time when he was in good humor, took a pistol from a table drawer and walked to the bathroom holding the weapon at his head while the girls yelled to put the gun down. The insured returned from the bathroom and exchanged the pistol for another which he then took to the bathroom where, to quote from the appellee's brief, he 'examined it in some way.' It was upon his return the second time that he pointed the gun at his chest, pulled the trigger twice, and, despite the cry of one of his companions to stop because the gun might be loaded, pulled the trigger the third time and was morally wounded. He immediately cried, 'My God, the gun was loaded * * * I am shot. Call a doctor.' Then he callapsed.

We conclude that the insured did not come to his death by accidental means. While he was showing off, he doubtless did not intend to shoot himself but only to frighten his friends by pretending to do so. As we have written, he took the pistol into the bathroom, after discarding an unloaded one, and, as the appellee says, made some examination of it. He evidently miscalculated the number of times it would snap before it would discharge. But he was engaged in a dangerous, foolhardy, act and although the result was not intended, the means were deliberate as distinguished from accidental.

We think the true rule for distinguishing between deaths that result from accidental means and those that result from means that are voluntary is well stated in Urian v. Equitable Life Assur. Soc., 310 Pa. 342, 165 A. 388, and cases cited therein. Several illustrations are given in the opinion but the two factual situations which by contrast make the categories clear are the one involved in that litigation and one considered in a cited case, Hesse v. Travelers' Ins. Co., 299 Pa. 125, 149 A. 96. In both cases death had resulted from poisonous gas. In one instance a patient died from an anesthetic, a poisonous gas, as he was about to undergo an operation. The court said, in the cited case, that the insured did not expire by accidental means because he had voluntarily inhaled the gas and therefore the only unforeseen element was the unexpected result. In the main case a man was killed by carbon monoxide gas while he worked on his car in a garage with an open door near the exhaust pipe. It was said by the court that his death was caused by accidental means because he had unconsciously, involuntarily, inhaled the gas.

The Supreme Court of Delaware dealt with a similar situation in Koester v. Mutual Life Insurance Co. of New York, 36 Del. 537, 179 A. 327, 329. A man and his wife were struggling for possession of a gun when it fired and killed the man. The couple were not quarreling but the man was trying to get possession of the weapon because he thought his wife was incapable of handling it. The question was whether or not the death was the result of accidental means. The court held that while the death was accidental, because 'unforeseen and unexpected,' the means were not. The discharge of the gun was not unusual or...