Lockwood v. Travelers Ins. Co.

• Citation: 498 P.2d 947,179 Colo. 103
• Decision Date: 03 July 1972
• Docket Number: No. 25257,25257
• Parties: Nancy Louise LOCKWOOD, Plaintiff-Appellee, v. The TRAVELERS INSURANCE COMPANY, Defendant-Appellant.
• Court: Supreme Court of Colorado

Page 947

498 P.2d 947

179 Colo. 103

Nancy Louise LOCKWOOD, Plaintiff-Appellee, v. The TRAVELERS INSURANCE COMPANY, Defendant-Appellant.

No. 25257.

Supreme Court of Colorado, En Banc.

July 3, 1972.

Marvin Dansky, P.C., Denver, for plaintiff-appellee.

Madden & Strate, William J. Madden, Denver, for defendant-appellant.

HODGES, Justice.

Plaintiff Nancy Lockwood was the beneficiary of a group policy on the life of her deceased husband, Gary Allen Lockwood. This policy, issued by the defendant Travelers Insurance Company, provided for a $3,000 payment upon death, and in the event of accidental death, an additional $3,000 payment. The plaintiff beneficiary claimed the double indemnity benefits on the ground that her husband's death resulted from accidental bodily injuries.

The defendant insurance company paid the plaintiff $3,000 but denied liability for the payment of the additional $3,000 accidental death benefit for which plaintiff thereupon brought action against the defendant insurance company in the trial court. The defendant insurance company denied that the death was accidental, and further alleged that the insured had committed suicide, an excepted risk under the accidental death provisions of the policy.

After trial to a jury, a verdict for the plaintiff in the amount of $3,000 was returned, and a judgment against the defendant was accordingly entered. On appeal, the defendant alleges several errors which it claims require reversal of the trial court's judgment. We agree with the defendant's contentions that the jury was improperly instructed on the presumption of accident and on the burden of proof necessary to overcome that presumption. Also, we agree with the defendant's assertion that the trial court committed reversible error when it admitted into evidence the death certificate without excising a portion of it. We therefore reverse the judgment and remand this cause to the trial court for a new trial.

All the other allegations of error by the insurance company are not sustainable and only those which are of some significance require limited discussion herein.

The pertinent facts as shown from the evidence are summarized. The plaintiff, her deceased husband and several acquaintances had attended a New Year's Eve party and were in the process of going to another party when they stopped at the Lockwood home so that he could change his shirt. The plaintiff and her husband went into their bedroom. He closed the door behind them. The plaintiff testified that he then made sexual advances toward her which she resisted. While she went to the closet to get a shirt for her husband, he took a .45 calibre automatic pistol from a dresser drawer. The testimony indicated that this weapon was always kept in this drawer with a live round of ammunition in the chamber. When the plaintiff turned from the closet, she saw the insured with the gun in his hand. She told him three times to put it away and he said that he would. She turned back to the closet and the gun was then discharged. The plaintiff further stated that she and her husband were not having angry words, but that they were in disagreement about having another child.

The testimony of the other witnesses who were in the house at the time is essentially the same, but some of their testimony indicated that the plaintiff and her husband had been 'picking at each other' all evening. Another testified that she heard the plaintiff say 'put it away' three times and that this was immediately followed by the shot. Other testimony presented showed that the insured loved his wife and child, and was happy in his work. The testimony was conflicting as to his state of intoxication at the time of death. A toxologist testified that he had performed a blood alcohol test on the deceased some days later and determined the alcohol content to be .105.

Relatives and friends of the insured testified that he was extremely familiar with guns. A police officer who was knowledgeable about hand guns testified that the pistol in question was a heavy weapon and that it had two safety devices, both of which had to be depressed simultaneously as the trigger was depressed in order ofr this gun to fire. In other words, a person would have to squeeze the handle of the pistol with sufficient pressure to depress the rear safety, and at the same time, depress the second safety with his thumb before the trigger could be actuated.

The fatal shot penetrated the head at the hairline of the right temple, traveled at a slightly upward angle, and exited on the left side of the head. There were powder burns at the point of entry and the muzzle of the gun had bits of skin, bone and blood on it.

The coroner testified that he had not conducted a personal investigation of the incident, but relied on the reports of his investigator and the police officers as the basis of his report and his conclusion as to the cause of death. No formal inquest was held. The original death certificate listed the cause of death as 'suicide,' but this was later amended to read 'accident.' The coroner stated that the prime factor in his decision to amend was the fact that the motor vehicle law had been revised to lower the level of blood alcohol for driving under the influence from .150 to .100. The amended death certificate was admitted into evidence over the defendant's objection.

I.

The defendant contends that the trial court erred in failing to direct a verdict in favor of the defendant because (1) no presumption of accident existed at the conclusion of all the evidence, and (2) because even if the presumption and the amended death certificate created a prima facie case, the defendant's evidence overcame the prima facie case. The defendant argues that while death in an unexplained manner by violent external means creates a presumption of accident, the manner of death here was not unexplained.

In our view, the facts of this case and the inferences which logically could be drawn from these facts do not conclusively or with requisite certainty exclude the possibility of death resulting from accidental bodily injuries as opposed to suicide. To express it in another way, the facts and the inferences to be drawn therefrom, although suggestive of suicide, do not wholly eliminate accidental death. Taken as a whole and fairly construed, the evidence did not conclusively establish suicide. The resolution of the issue was therefore properly for the jury. See Bickes v. Travelers' Insurance Co., 87 Colo. 297, 287 P. 859; Preferred Acc. Ins. Co. v. Fielding, 35 Colo. 19, 83 P. 1013; Travelers Insurance Co. v. McConkey, 127 U.S. 661, 8 S.Ct. 1360, 32 L.Ed. 308; Parfet v. Kansas City Life Ins. Co., 128 F.2d 361 (10th Cir.)

II.

The defendant next complains of several instructions given to the jury and predicates error both on the giving of these instructions and on the court's refusal to give three instructions tendered by the defendant.

Instruction No. 2 informed the jury that plaintiff had the burden of proving her case by a preponderance of the evidence and that the defendant had the burden of proving its allegation of suicide by a preponderance of the evidence. The instruction also defined preponderance of the evidence.

Instruction No. 8 read:

'You are instructed that a violent, external, unexplained death is presumed to be accidental, and the presumption is against suicide; and consequently, the burden of proving suicide is upon the party pleading it, who in this case is the Defendant Insurance Co. The presumption is not conclusive and is rebuttable by evidence either direct or circumstantial.'

Instruction No. 9 explained presumptions and told the jury that they 'take the place of evidence unless and until outweighed by evidence to the contrary.' It also stated, 'In this case the law presumes that violent, unexplained death is accidental and that the statements on the official death certificate . . . are on their face true.'

Instruction No. 2 correctly stated that the plaintiff had the burden of proving every element of her case by a preponderance of the evidence. It incorrectly placed an equal burden on the defendant to prove suicide. A more accurate statement of the law is that when death by accident is challenged and suicide is alleged, the plaintiff has the burden of proving by a preponderance of the evidence that the death was the result of accident rather than suicide.

The plaintiff always has the burden of proving his or her case. Once a prima facie case is established, the burden of going forward to rebut the prima facie case shifts to the defendant. This burden of going forward is met when the defendant has introduced enough evidence to present a jury question where formerly there was a prima facie case.

Applying this analysis to the particular facts of the case before us, we find that the plaintiff's allegation of accident, coupled with the amended death certificate, the presumption of accident, and other evidence, established a prima facie case of death by accident. The burden of going forward then shifted to the defendant to produce sufficient evidence to rebut and overcome this prima facie case. This burden was purportedly met here through the denial of death by accident and the allegation of suicide in defendant's answer, Murray v. Travelers Insurance Co., 143 Colo. 258, 352 P.2d 678, and the evidence presented on behalf of the defendant, including testimony regarding the peculiarities of the weapon used and the fact that the original death certificate had listed suicide as the cause of death. See 46 C.J.S. Insurance § 1317.

When the 'accident-suicide' dichotomy is placed in issue as it was here by the pleadings and the rebuttable presumption, the plaintiff has the burden of proving accident to the exclusion of suicide by a preponderance of the evidence. See 46 C.J.S. Insurance § 1319(4)(b); Industrial Comm. of Colorado v. Peterson, 151 Colo. 289, 377 P.2d 542; American Ins. Co. v. Naylor, ...