Lewis v. Insurance Company of North America, 27727 Summary Calendar.

• Decision Date: 01 October 1969
• Docket Number: No. 27727 Summary Calendar.,27727 Summary Calendar.
• Citation: 416 F.2d 1077
• Parties: Georgia Mae LEWIS, a Widow, et al., Plaintiffs-Appellees, v. INSURANCE COMPANY OF NORTH AMERICA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

416 F.2d 1077 (1969)

Georgia Mae LEWIS, a Widow, et al., Plaintiffs-Appellees, v. INSURANCE COMPANY OF NORTH AMERICA, Defendant-Appellant.

No. 27727 Summary Calendar.

United States Court of Appeals Fifth Circuit.

October 1, 1969.

COPYRIGHT MATERIAL OMITTED

Elton Gilliland, Shafer, Gilliland, Davis, Bunton & McCollum, Odessa, Tex., for defendant-appellant.

John J. Watts, Odessa, Tex., V. F. Knickerbocker, Midland, Tex., for plaintiffs-appellees.

Before THORNBERRY, MORGAN and CARSWELL, Circuit Judges.

THORNBERRY, Circuit Judge:

This is an appeal from a Texas diversity action to recover benefits on an accidental death insurance policy.¹ The main question in the case is whether the death of the deceased, which was caused by gunshot wounds inflicted by a woman whom he was assaulting, was "accidental" within the meaning of the policy. The trial court directed a verdict on this issue in favor of the decedent's widow, appellee here, thereby holding the death accidental as a matter of law. Since we have concluded that under Texas law the case raised questions for the jury, we reverse and remand for a new trial.

Two issues are presented for our decision. One concerns the appropriateness of the directed verdict under the standards set by Boeing Co. v. Shipman, 5th Cir. 1969, 411 F.2d 365. The other concerns the exclusion by the trial court of certain impeachment evidence offered by the insurance company. We take up the issues in this order.

I. THE DIRECTED VERDICT ISSUE

Early one Sunday morning, after a late-night party, Annie May Wallace tragically shot and killed Oscar Lewis. She and the deceased had lived together. The deceased had returned home early, Annie May coming about two hours later. Upon her arrival, the deceased ordered her to get her clothes and get out, striking her hard three times. While she was leaving, Annie May told the decedent not to hit her any more; but he pursued her out into the yard, knocked her down, and began beating her. It was in this posture that the deceased was killed by a shot from a pistol he had given his companion earlier in the evening.

A jury could reasonably have found from the evidence that the shot came accidentally or that the decedent could not have anticipated that he would be shot. On the other hand, there is also ample evidence from which a jury could have found that the deceased knew he might be shot. He knew that his companion had the pistol because he had given it to her earlier in the evening. She warned him to stop beating her. The evidence does not show conclusively when or where she took the gun out, but it conceivably may have been before the deceased began beating her. There was testimony from which a jury could have found that the deceased continued to beat Annie May after she had begun firing at him. Above all, a jury might have found that a heavy, strong man vigorously assaulting a woman should expect that she might defend herself by whatever means were available.

Consequently, a directed verdict for appellee was improper here. While there are circumstances in which death from gunshot wounds received in the course of an assault may be considered accidental, Texas law is clear to the effect that a person who should reasonably have foreseen that his conduct might provoke the use of deadly force against him cannot be said to have encountered accidental death. In Stevenson v. Reliable Life Ins. Co., Tex.Civ. App.1968, no writ hist., 427 S.W.2d 945, for example, a man who advanced at his wife in a threatening manner while she held a pistol was held not to have died accidentally when she shot him. See also Seaboard Ins. Co. v. Murphy, Tex.Com. App.1939, opinion adopted, 134 Tex. 165, 132 S.W.2d 393; Perry v. Aetna Life Ins. Co., Tex.Civ.App.1964, writ ref'd n. r. e., 380 S.W.2d 868; Spencer v. Southland Life Ins. Co., Tex.Civ.App. 1960, writ ref'd, 340 S.W.2d 335. The test is to be applied from the viewpoint of the insured; that is, with reference to the facts and inferences available to him. The beneficiary, however, had the burden of pleading and proving coverage under the policy. Reserve Life Ins. Co. v. Crager, Tex.Civ.App.1967, no writ hist., 421 S.W.2d 697; Bethea v. Nat'l Cas. Co., Tex.Civ.App.1957, writ ref'd, 307 S.W.2d 323. Comparing facts and law, we find that under Boeing Co. v. Shipman, supra, there is sufficient evidence to go to the jury here.

II. THE IMPEACHMENT EVIDENCE ISSUE

One of the items of evidence that the insurance company sought to introduce at the trial was a statement made by Annie May Wallace to a police officer after the incident. This statement, which contradicted the declarant's direct testimony in some material respects, was offered for impeachment purposes as a prior inconsistent statement. The trial court, however, excluded the statement because it had not been preceded by the warnings of rights required for admission of confessions in criminal cases by Miranda v. Arizona, 1966, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.² The declarant was a possible defendant to a criminal prosecution, and solicitude for her rights was unquestionably appropriate, but we hold that the exclusion of this statement offered for impeachment purposes in a civil case was error.

We begin with the proposition that the statement offered, since it was a prior inconsistent statement, would ordinarily be admissible for impeachment purposes solely on that ground, absent any basis for its exclusion. Contrary to appellee's apparent argument, it does not have to fall into any exception to the hearsay rule, such as res gestae, in order to be admissible. The hearsay rule applies to statements offered to prove the truth of the matter asserted. An inconsistent statement, on the other hand, is admitted to demonstrate falsity. It is important evidence going to the credibility of a witness' testimony, and the policy for admitting it is readily apparent. See C. McCormick, Evidence §§ 33-34, 225 (1954). It remains to inquire whether there is reason to exclude the statement at issue here.

The issue, though simple, has a number of confusing ramifications which we must eliminate from consideration. First, we recognize that the declarant's statement would be inadmissible, in whatever form it was offered, as direct evidence against the declarant in a criminal prosecution if it occurred under...