Life & Cas. Ins. Co. of Tenn. v. Daniel

• Decision Date: 14 October 1968
• Citation: 209 Va. 332,163 S.E.2d 577
• Court: Virginia Supreme Court
• Parties: LIFE AND CASUALTY INSURANCE COMPANY OF TENNESSEE v. Kathleen V. DANIEL.

Page 577

163 S.E.2d 577

209 Va. 332

LIFE AND CASUALTY INSURANCE COMPANY OF TENNESSEE v. Kathleen V. DANIEL.

Supreme Court of Appeals of Virginia.

Oct. 14, 1968.

Collins Denny, III, Thomas E. Crosley, Jr., Richmond (Mays, Valentine, Davenport & Morre, Richmond, on brief), for plaintiff in error.

J. C. Hutcheson, Lawrenceville (Larry M. Jones, Lawrenceville, on brief), for defendant in error.

Before EGGLESTON, C.J., and BUCHANAN, SNEAD, I'ANSON, CARRICO, GORDON, and HARRISON, JJ.

HARRISON, Justice.

This action was instituted by Kathleen V. Daniel, plaintiff, against the defendant, Life and Casualty Insurance Company of Tennessee, to recover the sum of $2,000 as the beneficiary under an accident policy issued by the defendant insuring Jesse M. Daniel for loss of life by 'drowning or bodily injury effected solely through violent, external and accidental means and if such drowning or bodily injury is the direct, independent and proximate cause of death'. The policy also provided, in an exclusion, reduction and limitation clause, that death caused 'from self-destruction, while sane or insane' was excluded from coverage. Plaintiff claimed that the insured's death by drowning was within the terms of the policy. Defendant admitted death was caused by drowning but denied liability on the ground that the insured's death was caused by self-destruction and not by accidental means.

The case was tried by a jury, and at the conclusion of plaintiff's evidence the trial court overruled defendant's motion to strike out plaintiff's evidence. A similar motion was overruled at the conclusion of all the evidence. The jury returned a verdict for plaintiff in the amount sued for, and judgment was entered on the verdict. Defendant is here on a writ of error.

Defendant contends that the trial court erred (1) in instructing the jury that defendant had the burden of proving that the insured's death was caused by suicide and not by accidental means; and (2) in holding that the evidence supported the jury's verdict of accidental death.

The insured, who was 53 years of age, met his death by drowning in the Camp Pickett reservoir in Brunswick County, Virginia, on August 19, 1965. When his body was taken from the water in the late afternoon of that day it was fully clothed and unmarked. The watch of deceased was still on his wrist. Insured's automobile had been parked and locked on a pulloff on the east side of Route 46, approximately 30 to 40 feet from a high bank at the water's edge. The car had been there since at least 9 o'clock that morning. When the car doors were opened, the insured's hat was found upside down on the right front floorboard. Inside the hat were his folded glasses, which he was accustomed to wearing when working or driving, and a package of cigarettes, and covering them was a handkerchief.

Plaintiff testified that the insured left home early in the morning on Thursday, August 19th. It was not unusual for him to get up early. He had mentioned to her on Monday of that week that he was going to Crewe, Virginia, to get a muffler for his automobile, and also stated that he had been thinking about getting a new car. She assumed he had gone to Crewe on the day of the drowning. He left some money on the bureau before leaving home, but it was not unusual for him to do that for deceased operated a store which was attached to their home, and plaintiff often assisted in its operation. She did not know of anything that was worrying her husband, and she knew of no reason he would intentionally take his life.

Plaintiff stated on cross-examination that on an occasion about two months prior to insured's death he said he was depressed and told her that he 'would be just as well off dead or maybe up at the lake'. After telling her that he left, but was back in five minutes. She said that her husband had made similar statements a few times over the years, but she did not pay any attention to them because, from the manner and the circumstances under which he made them, she did not believe he was serious.

The insured did not have a permit to fish in the reservoir, and so far as plaintiff knew he never went fishing. He could not swim.

The deputy sheriff testified that on the day of the drowning plaintiff told him that insured made the above quoted statement about two weeks before his death and that he stayed away from home all day on that occasion; and that insured would not get into a boat because he was afraid of the water. Plaintiff denied that she had made any of the alleged statements as related by the deputy sheriff.

The trial court instructed the jury that the drowning of deceased at the time under consideration established a presumption that such drowning was accidental, and unless such presumption is rebutted by the defendant, or other evidence in the case, they should find for the plaintiff; that the defendant, seeking to avoid payment of the policy on the ground that the insured's drowning was caused by suicide, had the burden of proving not just by a preponderance of the evidence, but by clear and satisfactory evidence, that the cause of death was suicide; and that when evidence of self-destruction is circumstantial, the defendant fails to overcome the presumption of accidental death unless the circumstances shown by the evidence exclude with reasonable certainty every hypothesis of accidental death.

Defendant contends that the instruction placing the burden of proving suicide on it is not applicable in the present case because there is a clear distinction between actions on ordinary life insurance contracts providing for the payment of stipulated benefits in the event of death, and contracts like the one here in which the insured event is death by drowning or bodily injury effected solely through violent, external and accidental means.

It is the settled doctrine in Virginia, supported by a long line of decisions, that where circumstantial evidence is relied upon to establish suicide as a defense to an action on a life insurance policy, the law presumes that death results from a natural cause and the burden is upon the insurer to establish suicide by clear and satisfactory evidence to the exclusion of any reasonable hypothesis consistent with death from natural or accidental causes. See Life Insurance Company v. Brockman, 173 Va. 86, 93, 3 S.E.2d 480, 483 (1939) and numerous cases cited.

Under the general rule, which we follow, a beneficiary who makes a death claim under an accident policy or the double indemnity clause of a life policy, has the burden of proving that the insured's death was caused by violent, external and accidental means within the terms of the policy. General Accident, Fire & Life Assurance Corp. v. Murray, 120 Va. 115, 126, 90 S.E. 620, 624 (1916); 29A Am.Jur., Insurance, § 1852, p. 914; 46 C.J.S. Insurance § 1317(2), p. 406.

The courts and commentators are in agreement that when death by external and violent means is proven, a presumption arises in favor of the beneficiary that the death was accidental, and the jury is required to find for the beneficiary unless there is evidence sufficient to justify a conclusion of suicide.

This presumption in favor of death by accidental means and against suicide has its basis in the love of life and the instinct of self-preservation, the fear of death, the fact that self-destruction is contrary to the general conduct of mankind, the immorality of taking one's own life and the presumption of innocence of crime. Aside from the fact self-destruction is an unnatural act, it is an act which could constitute a deliberate fraud. For good and valid reasons, most courts have placed a full burden on those who interpose suicide as a defense, just as they have where fraud is relied upon as a defense. The presumption, however, is rebuttable and may be overcome by facts and circumstances which show that death was the result of suicide. It is when rebutting evidence is introduced that different theories have developed as to the operation and weight of the presumption.

Some courts have held that the presumption against suicide and in favor of accidental death is a procedural tool concerning evidence, which does not constitute evidence or possess probative force; that the presumption shifts the burden of coming forward with evidence, but never shifts the burden of persuasion; that the presumption disappears when credible evidence is produced tending to show that death was the result of suicide; and that ordinarily the jury should not be told that there is a presumption against suicide. This view is commonly known as the Thayer theory. New York Life Ins. Co. v. Gamer, 303 U.S. 161, 58 S.Ct. 500, 82 L.Ed. 726, 114 A.L.R. 1218 (1938); Tyrrell v. Prudential Ins. Co. of America, 109 Vt. 6, 192 A. 184, 115 A.L.R. 392 (1937); Wigmore on Evidence, 2d ed., Vol. IX, p. 286, § 2490 et seq.; Annots.: 103 A.L.R. 185; 158 A.L.R. 747, 748; 12 A.L.R.2d 1264, 1323; 5 A.L.R.3d 19, 64. Other courts have taken the view that the presumption is itself evidence or at least has evidentiary weight. Mutual Life Ins. Co. of New York v. Maddox, 221 Ala. 292, 128 So. 383 (1930); Lewis v. New York Life Ins. Co., 113 Mont. 151, 124 P.2d 579 (1942); Wyckoff v. Mut. Life Ins. Co. of New York, 173 Or. 592, 147 P.2d 227 (1944); Annots.: 103 A.L.R. 185, 191; 158 A.L.R. 747, 750; 12 A.L.R.2d 1264, 1328; 5 A.L.R.3d 19, 65, 66. Still other courts have utilized the presumption to shift the burden of proof to the insurer to estabish that the death of the insured was due to suicide. Dick v. New York Life Ins. Co., 359 U.S. 437, 79 S.Ct. 921, 3 L.Ed.2d 935 (1959); Union Cent. Life Ins. Co. v. Sims, 208 Ark. 1069, 189 S.W.2d 193 (1945).

The nature of a presumption against suicide--whether it has evidentiary value--when and if it disappears--and its effect on the burden of proof, are questions upon which courts, text writers, legal commentators and professors of law have evinced much learning and...