New York Life Ins. Co. v. Murdaugh

• Decision Date: 11 January 1938
• Docket Number: No. 4263.,4263.
• Citation: 94 F.2d 104
• Parties: NEW YORK LIFE INS. CO. v. MURDAUGH.
• Court: U.S. Court of Appeals — Fourth Circuit

94 F.2d 104 (1938)

NEW YORK LIFE INS. CO. v. MURDAUGH.

No. 4263.

Circuit Court of Appeals, Fourth Circuit.

January 11, 1938.

Pinckney L. Cain, of Columbia, S. C. (Thomas, Lumpkin & Cain, of Columbia, S. C., on the brief), for appellant.

W. Brantley Harvey, of Beaufort, S. C., for appellee.

Before PARKER and SOPER, Circuit Judges, and CHESNUT, District Judge.

CHESNUT, District Judge.

In 1929 the New York Life Insurance Company, the appellant in this case, issued two policies of life insurance to Le Roy B. Tuten, each for the payment of five thousand dollars ($5,000) upon his death, and each also containing the double indemnity clause providing for the payment of an additional sum of five thousand dollars ($5,000) "upon receipt of due proof that the death of the insured resulted directly and independently of all other causes from bodily injury effected solely through external, violent and accidental means and occurred within 90 days after such injury". On July 4, 1935, while the policies were in full force and effect, Tuten was shot and killed in the town of Brunson, South Carolina, by T. J. Nix. Promptly thereafter the Insurance Company paid to the insured's administrator as beneficiary under the policies, the sum of ten thousand dollars ($10,000) representing the single indemnity under both policies; but refused to pay the double indemnity under either policy on the ground that the death of the insured was not accidental within the meaning of the policy provision but resulted from "the insured's committing an assault or felony", which was within the exclusion from liability contained in the policy provision that "double indemnity shall not be payable if the insured's death resulted * * * from committing an assault or felony". In the ensuing suit on the policies by the administrator, originally brought in the State Court and removed to the United States District Court, the plaintiff recovered a judgment for the amount in controversy, $10,000, with interest. From this judgment the insurer has appealed.

In the course of the trial the plaintiff, in addition to proving formal matters not really in controversy, submitted only the testimony of a physician to the effect that the insured had been shot and killed on a public street in the Town of Brunson, South Carolina, on the afternoon of July 4, 1935, and that an examination of the body showed that it had been completely pierced by four bullets, two entering the chest in front, and two in the back. Thereupon the plaintiff rested its prima facie case; and the defendant filed a motion for non suit on the ground that the plaintiff's proof did not show an accidental death. The defendant excepted to the overruling of this motion by the District Judge and has included the ruling in its assignments of error. The question of law thereby presented is whether, in a suit on an accident policy, the plaintiff makes out a good prima facie case by proof that the death of the insured was due to pistol shots inflicted by another person. To constitute a proper claim upon the policy it must be shown that death was caused solely through "external, violent and accidental means". It is conceded that the plaintiff's proof in his prima facie case established that the death was due to external and violent means, but it is said that it did not show that the means were accidental. The weight of authority is, however, to the contrary. On this point the applicable law has been well summarized by Circuit Judge Hutcheson, speaking for the Circuit Court of Appeals for the 5th Circuit, in Mutual Life Ins. Co. v. Sargent, 51 F.2d 4, 5, as follows:

"Upon the matter of proof it is the law, though there are one or two authorities contra (New York Life Ins. Co. v. Ollich (C.C.A.) 42 F.(2d) 399, 401), that while the burden is upon plaintiff in cases of this kind to prove death resulting from external, violent and accidental means, proof without more that insured was killed by another raises the presumption that death was accidental, and makes out a prima facie case in the absence of evidence to the contrary. Smith v. New York Life Ins. Co. (C.C.A.) 31 F.(2d) 281; Nerrow v. Pacific Mutual Life Ins. Co. (Mo.App.) 294 S.W. 97, 99; Withers v. Pacific Mutual Life Ins. Co., 58 Mont. 485, 193 P. 566; Aetna Ins. Co. v. Rustin, 151 Ky. 103, 151 S.W. 366; Jones v. U. S. Mutual Acc. Ass'n, 92 Iowa 652, 61 N.W. 485; Aetna Life Ins. Co. v. Little, 146 Ark. 70, 225 S.W. 298."

See, also, Aetna Life Ins. Co. v. Hagemyer, 5 Cir., 53 F.2d 636, certiorari denied 285 U.S. 542, 52 S.Ct. 314, 76 L.Ed. 934; Boggan v. Provident L. & A. Ins. Co., 5 Cir., 79 F.2d 721, 723; Scales v. Home Life Ins. Co., 5 Cir., 89 F.2d 580, 583; Massachusetts Bonding & Ins. Co. v. Santee, 9 Cir., 62 F.2d 724; Jefferson Standard Life Ins. Co. v. Clemmer, 4 Cir., 79 F.2d 724, 103 A.L.R. 171; Linnen v. Commercial Cas. Co., 152 S.C. 450, 150 S.E. 127; Martin v. Mutual Insurance Co., 106 W.Va. 533, 540, 146 S.E. 53; 1 C.J. 495. Furthermore it is well settled that the defendant's exception to the ruling was waived by the introduction of evidence thereafter on its own behalf in support of its affirmative contention that the insured's death resulted from the commission of an assault. Union Pac. Ry. Co. v. Daniels, 152 U.S. 684, 14 S.Ct. 756, 38 L.Ed. 597; Sigafus v. Porter, 179 U.S. 116, 121, 21 S.Ct. 34, 45 L.Ed. 113; Atlantic C. L. Ry. Co. v. Connor, 4 Cir., 194 F. 409; McCrary Engineering Co. v. White Coal Power Co., 4 Cir., 35 F.2d 142, 143.

The appellant's principal contention here is that the district judge should have granted the motion for a directed verdict in its favor upon the conclusion of all the testimony in the case; but after a study of the record we are satisfied that the question of fact whether the insured's death was accidental within the meaning of the policy or resulted from an assault committed by him was properly submitted to the jury. On this controlling issue in the case the testimony was conflicting. There were two versions of exactly what occurred between Nix and Tuten, the insured, immediately prior to the fatal shooting. Certain facts, however, appear in both accounts of the matter. Thus it appears without contradiction that Nix was a local magistrate. He and Tuten had long been friends, or at least acquaintances, but shortly before the fatal encounter there had arisen bad feeling between them apparently owing to some official action taken by Nix against a tenant of Tuten. Shortly before the fatal shooting Tuten met Nix on the main street of Brunson, and there was some angry conversation between them during which it appears that Nix accused Tuten of having recently cursed him and quoted one Dowling who lived nearby as his informer. Thereupon Tuten said that he would go to see Dowling to inquire about the matter and would return. Tuten then drove off in his automobile toward Dowling's residence and shortly returned and again met Nix on the same street, at which time the fatal shooting occurred. Promptly thereafter a search of Tuten's body and automobile failed to disclose that he had been armed with a pistol or any other weapon.

The crux of the controversy on the facts was with regard to precisely what occurred at the time of this later meeting. The only evidence of this offered by the defendant was the testimony of Nix, the substance of which was that when Tuten drove away from the first meeting he said to Nix "I will settle with you when I come back any way you want to settle it"; that in a few minutes Tuten drove back, got out of his car, took about three steps toward Nix saying that he was ready to settle with him "any way you want to settle it", and at the same time reached his hand in his shirt, being without a coat; that Nix thought Tuten was reaching for his pistol, as he knew that Tuten habitually carried a pistol and had the reputation of being a man of violent and turbulent temperament, and that Tuten had previously made threats against him; and thereupon in self defense Nix fired three shots into Tuten's body. Nix was corroborated in part at least with respect to the matter of Tuten's general reputation and his threats against Nix by some other witnesses. On the other hand, in rebuttal for the plaintiff, two eye witnesses of the occurrence at the fatal meeting testified in substance that Tuten got out of his automobile, engaged in conversation with Nix for four or five minutes with his arms folded and leaning against the rear...