Koger v. Mutual of Omaha Ins. Co.

• Decision Date: 08 November 1968
• Docket Number: No. 12712,12712
• Citation: 152 W.Va. 274,163 S.E.2d 672
• Court: West Virginia Supreme Court
• Parties: Marguerite KOGER v. MUTUAL OF OMAHA INS. CO., a Mutual Insurance Company.

Page 672

163 S.E.2d 672

152 W.Va. 274

Marguerite KOGER v. MUTUAL OF OMAHA INS. CO., a Mutual Insurance Company.

No. 12712.

Supreme Court of Appeals of West Virginia.

Submitted May 7, 1968.

Decided June 25, 1968.

Rehearing Denied Nov. 8, 1968.

Syllabus by the Court

1. 'A verdict of a jury without evidence to support it, or against the clear weight and preponderance of conflicting evidence, will be set aside by this Court.' Syl., Speicher v. State Farm Mut. Auto. Ins. Co., 151 W.Va. 292 (151 S.E.2d 684).

2. 'Where death occurs from unexplained violent and external means, an accident may be presumed; but presumption is excluded when the cause of death is shown. * * * ' Pt. 2, Syl., Beckley Nat'l Exch. Bank v. Provident Life & Acc. Ins. Co., 121 W.Va. 152 (2 S.E.2d 256).

3. A death which occurs as the natural and probable consequence of an act or course of action is not an accident nor is it produced by accidental means.

4. In an action to recover benefits under an insurance policy insuring against death resulting from accidental bodily injury, where the evidence shows that: the insured died as a result of a gunshot wound in the head; while there were no actual witnesses to the shooting, immediately previous thereto the deceased had suggested playing Russian Roulette and had taken certain steps conforming to that design; and the physical facts negate any likelihood of accident except by the most unrestrained conjecture, a judgment in favor of the beneficiary and against the insurer will be reersed.

Crockett, Tutwiler & Crockett, J. Strother Crockett, Welch, for appellant. Bailey, Worrell, Camper & Viers, Harry G. Camper, Jr., Welch, for appellee.

BROWNING, Judge:

Charles J. Koger, the insured under a policy of health and accident insurance issued by Mutual of Omaha Insurance Company, hereinafter referred to as defendant died December 5, 1965, as a result of a gunshot wound in the head. The policy contained an accidental death and dismemberment benefit rider which provided, in part: 'EXCEPTIONS: Benefits are not payable for loss: * * * (b) resulting from suicide while sane or insane * * *. BENEFITS: The company will pay benefits for the following losses which result from injuries incurred by the insured within ninety days after the date of the accident: Loss of Life--principal sum. * * * ' Injuries, as defined in the policy, means 'accidental bodily injuries * * * which result in loss independently of other causes.'

Mrs. Koger, the beneficiary named in the policy, hereinafter referred to as plaintiff, filed a claim for benefits which was denied by the defendant on the ground that Koger's death was not the result of an accident but was the result of his own deliberate act or suicide. Plaintiff then instituted the present action in the Circuit Court of McDowell County to recover under the policy; a jury returned a verdict in her favor in the amount of $5,000.00, and judgment was entered thereon on June 22, 1967, to which this Court granted an appeal and supersedeas on November 27, 1967.

To summarize the evidence, plaintiff testified that she and the deceased had been married for nineteen and one-half years; had two male children, ages nineteen and ten at the time of Mr. Koger's death; lived in their own home which they owned; were free of debt; Mr. Koger earned approximately $10,000.00 a year regularly at his employment; Mr. Koger as forty-three years of age at the time of his death and in good health; and, that they had 'a strong and happy family.' On December 4, 1965, Mr. Koger went to work at approximately 11:30 p.m., worked his usual shift and returned to the home at approximately 9:00 a.m.; went to sleep; got up around 3:00 or 4:00 p.m. and went to Welch where he visited Mrs. Koger's sister, returning later that evening. At approximately 1:00 a.m. on December 6, two friends visited him at the home and Koger and his friends had a couple of drinks of whiskey after which plaintiff prepared a meal. It may be noted here that although the testimony of the plaintiff was to the effect that there had been little drinking prior to the meal which she prepared for her husband and his two friends and that Koger was not intoxicated, a photograph of the scene while the deceased's body still lay in the chair shows two empty liquor bottles--one a fifth and one a pint. After eating, the guests left and plaintiff and Koger walked down to a neighbor's house three doors away to get their little boy, returned with him, whereupon the little boy was put to bed and Mr. Koger went to the bedroom where he kept his revolver and obtained the gun, proceeded to the kitchen and removed five bullets from the gun, placing them in a tray. He then returned to the living room and asked plaintiff to play Russian Roulette which she declined to do. At that time the younger son 'spoke up and started out' of the front bedroom and 'I started in the bedroom to grab the little boy that was coming out.' As she started she saw Koger raise the gun in the air and was 'messing with it.' Within seconds thereafter, although she observed no more, her back being turned, she heard a shot, turned around and saw Koger lying in a chair bleeding from a wound in the head. A deputy sheriff who investigated the occurrence identified photographs which were admitted in evidence showing Koger lying in the chair with a wound in his head, the revolver lying between his feet. He testified that in a statement from plaintiff taken that evening, Mrs. Koger stated: 'Charles started arguing with me and he got up and went and got his pistol and said, 'Let's play Russian Roulette,' and I went in the bedroom and I heard him shoot.' The county coroner testified that the deceased died of a bullet wound which entered 'on the right side of the head, with powder burns about one-eighth of an inch in width, about the puncture hole, which was located one inch above the upper margin of the ear. The bullet hole was probed and found to go in and slightly upward at about 20 degrees, and made its exit on the left side of the scalp about two inches above the left ear and eight inches from the mid line of the forehead.' The doctor further testified that the small one-eighth inch powder burn would indicate that the gun was a 'considerable distance from the head'--estimating that the gun was further than a foot and a half or two feet away from the point of entrance when fired--and stated that under the circumstances he could not say whether the firing was accidental or intentional. The cause of death given on the death certificate was 'self-inflicted.' As heretofore stated the jury returned a verdict in favor of the plaintiff, judgment was entered thereon and the defendant appeals.

This Court perceives no error in the trial of this case unless it be the refusal of the trial court to direct a verdict for the defendant after the completion of all of the evidence in the case. To sustain his position that the trial court properly refused such motion and to uphold the judgment of the trial court upon the verdict of the jury, counsel for the plaintiff cites decisions of this Court, and many could be cited, to the effect that in determining whether the verdict of a jury is supported by the evidence 'every reasonable and legitimate inference, fairly arising from the evidence in favor of the party for whom the verdict was returned, must be considered, and those facts, which the jury might properly find under the evidence, assumed as true.' Butcher v. Stull, et al., 140 W.Va. 31, 82 S.E.2d 278. This statement is contained in Bower v. Brannon, 141 W.Va. 435, 90 S.E.2d 342: 'However, a decision as to where the province of a jury ends, and that of a court begins, upon questions of fact, must be determined by the evidence in each case. Many well established principles are helpful. If there is no evidence to support the verdict of a jury, or if it is against the plain preponderance of conflicting evidence, it must be set aside. * * * There is no rule or principle of law that can serve as a definite guide post to point the...