Key Life Ins. Co. of South Carolina v. Byrd

• Decision Date: 05 May 1975
• Docket Number: No. 48040,48040
• Citation: 312 So.2d 450
• Parties: KEY LIFE INSURANCE COMPANY OF SOUTH CAROLINA v. Mrs. Mary Katherine Morse BYRD.
• Court: Mississippi Supreme Court

Page 450

312 So.2d 450

KEY LIFE INSURANCE COMPANY OF SOUTH CAROLINA v. Mrs. Mary Katherine Morse BYRD.

No. 48040.

Supreme Court of Mississippi.

May 5, 1975.

Dale & Upton, Columbia, for appellant.

Hall, Callender & Dantin, Columbia, for appellee.

Before RODGERS, INZER and WALKER, JJ.

RODGERS, Presiding Justice:

Mrs. Mary Katherine Morse Byrd filed suit against Key Life Insurance Company of South Carolina in the Circuit Court of Marion County, Mississippi. The suit was based on a life insurance policy alleged to have insured the life of her late husband, Billy Fox Byrd, and which was issued by appellant payable to George Byrd, beneficiary, the benefits of which had been assigned to Mrs. Byrd. The jury returned a verdict in favor of the plaintiff, and the defendant life insurance company has appealed to this Court. The appellant contends, among other things, that the trial court should have sustained its motion for a directed verdict in favor of the defendant life insurance company.

A careful study of the record and authorities cited in this case has convinced us that the trial court erroneously overruled the defendant's motion for a directed verdict.

The insurance policy issued by the appellant contains the following paragraphs:

'THE COMPANY HEREBY AGREES to pay benefits to the extent herein, and subject to the provisions, exclusions and limitations hereinafter set forth for losses resulting from accidental bodily injuries as herein defined, suffered by those persons actually in the employ of the Policyowner named above, whose names for the period of insurance granted hereunder, including renewal thereof, appear on the payroll records of the Policyowner during the effective period hereof.

This policy pays benefits for losses resulting directly and independently of all other causes from accidental bodily injuries sustained solely through external, violent and accidental means and while this policy is in force . . ..' (Emphasis added)

In order to recover from the insurance company upon the insurance policy issued by it, it was necessary to show that the life of the deceased was insured by the terms of the policy; that he was employed as a 'laborer;' that he was acting within the 'scope of his employment' at the time of his death; and that he died as a result of 'accidental bodily injuries' within the meaning of the policy.

There is much to be desired in the testimony offered by the plaintiff to indicate that the deceased was intended to be included as a regular employee of his brother George Byrd. As a matter of fact, the claim of the employer George Byrd that he employed his brother was based upon his checkbook stubs and checks. The name of the deceased did not appear on the regular weekly payroll. Moreover, assuming that he was considered an employee, his employer testified that 'at times' he could have been classified as a foreman and 'at times' he acted as a supervisor.

The testimony of George Byrd shows that he did not know whether or not his brother was working on the day of his death, but that he was not acting as a foreman or superintendent on that date. The only testimony in the record to indicate that the deceased was working as a timber buyer on the day of his death was the fact that he did not go by his mother's home to get a cup of coffee, as he usually did when he was not working, and that he was thought to have been more than two miles away from home sometime in the early morning.

If it could be said that the deceased was an employee of George Byrd and that he was working on the day of his death, there is no competent testimony to indicate that the deceased died of 'accidental bodily injuries sustained solely through external, violent and accidental means' except that of Dr. J. S. Haney.

The claimant, Mrs. Mary Katherine Morse Byrd, the widow of Billy Fox Byrd, testified that as she went to work (she was employed away from home) in the morning, her husband drove up in his truck. She noticed that his truck fender was bent and crumpled. She said: 'As I was walking out the door Bill was driving up. I says, 'Daddy what happened to the truck? The right front fender was dented and nonchalantly he said, 'Oh, I hit a tree."

The appellant objected to this testimony, but the objection was overruled.

This evidence was inadmissible and, since it was one of the necessary elements to be proven, its admission was harmful, and its admission was error.

Statements made by deceased witnesses are generally held to be incompetent under the hearsay rule (Phillips v. Dow Chemical Co., 247 Miss. 293, 151 So.2d 199 (1963)) unless they are a part of the res gestae. They are sometimes rejected as being self-serving declarations where they establish claims for injury or restitution. 29 Am.Jur.2d Evidence § 621, at 674-75 (1967). There are exceptions to these rules, such as dying declarations in criminal prosecutions or exclamations...