Piva v. General American Life Ins. Co., WD

• Decision Date: 18 January 1983
• Docket Number: No. WD,WD
• Citation: 647 S.W.2d 866
• Parties: Marilyn PIVA, Respondent, v. GENERAL AMERICAN LIFE INSURANCE COMPANY, Appellant. 32927.
• Court: Missouri Court of Appeals

Page 866

647 S.W.2d 866

Marilyn PIVA, Respondent, v. GENERAL AMERICAN LIFE INSURANCE COMPANY, Appellant.

No. WD 32927.

Missouri Court of Appeals,

Western District.

Jan. 18, 1983.

Motion for Rehearing and/or Transfer to

Supreme Court Overruled and Denied

March 1, 1983.

Ben R. Swank, Jr., Karen M. See, Kansas City, for appellant.

Robert E. Hart, Kansas City, for respondent.

Before SHANGLER, P.J., and PRITCHARD and DIXON, JJ.

SHANGLER, Presiding Judge.

The plaintiff Piva, wife of the insured decedent and beneficiary under a group insurance policy issued by the defendant General American Life Insurance Company, recovered a jury verdict for the accidental death of her husband. The award for accidental death [$16,000] was in addition to a like sum payable at death, a liability not in dispute. The plaintiff presented evidence that the decedent was an insured of the defendant, that the wife was beneficiary, that the policy provided a $16,000 death benefit and an additional like sum for accidental death, that the insured husband died from a gunshot wound to the head--and then rested her case. The policy denied the accidental death benefit where the loss was occasioned by "participation in, or in consequence of having participated in, the commission of an assault or felony." The defendant General American presented evidence which allowed the inference that decedent met death while a participant in an assault, if not a felony. The plaintiff did not surrejoin that evidence. General American contends that in that posture of the proof, the cause of action for accidental death indemnity was not submissible.

We reverse the judgment and remand for new trial.

In an action on an insurance policy for an accidental death indemnity, the risk of nonpersuasion to recover on the cause of action rests on the plaintiff. That burden of proof, as in any other case, is governed by that fixed rule of law, and therefore does not shift. Stogsdill v. General American Life Insurance Company, 541 S.W.2d 696, 699 (Mo.App.1976); Berne v. Prudential Insurance Company of America, 235 Mo.App. 178, 129 S.W.2d 92, 98[3-7] (1939). The death of the insured from accidental means is an essential element to the cause of action, and the burden to prove that proposition abides with the plaintiff throughout the case. Griffith v. Continental Casualty Co., 299 Mo. 426, 253 S.W. 1043, 1048[8, 9] (banc 1923). The proof of death by violent means raises a presumption of accidental death. Di Paoli v. Prudential Insurance Company, 384 S.W.2d 861, 864[1-4] (Mo.App.1964). That proof, unless refuted, acquits the risk of nonpersuasion and suffices prima facie for submission and judgment. Ward v. Penn Mutual Life Insurance Company, 352 S.W.2d 413, 419 (Mo.App.1961); Sellars v. John Hancock Mutual Life Insurance Company, 149 S.W.2d 404, 405 (Mo.App.1941); McCormick, Handbook on the Law of Evidence § 342 (2d ed. 1972).

The presumption of accidental death from the evidence of violent means rests on the fact of experience that a person loves life and does not willingly intend or invite death. Perringer v. Metropolitan Life Insurance Co., 241 Mo.App. 521, 244 S.W.2d 607, 614[1-4] (Mo.App.1951); Connizzo v. General American Life Insurance Company, 520 S.W.2d 661, 664[3-5] (Mo.App.1975). Thus, by the very nature, the presumption of accidental death from the evidence of violent means is dispelled by the actual fact that death resulted from the assault or felony misconduct of the insured--and so excepted from policy coverage. Connizzo v. General American Life Insurance Company, supra, l.c. 665[6, 7]; Ieppert v. John Hancock Mutual Life Insurance Company, 347 S.W.2d 436, 444[1, 2] (Mo.App.1961). The presumption which sustains such a prima facie proof, therefore, is rebuttable and serves to shift to the adversary the burden to adduce evidence on the issue, but leaves with the plaintiff the risk of nonpersuasion to establish the gist of the case: that the insured died by accidental means. Connizzo v. General American Life Insurance Company, supra, l.c. 664[3-5]; Di Paoli v. Prudential Insurance Company, supra, l.c. 864[1-4]; Lindemann v. General American Life Insurance Company, 485 S.W.2d 477, 480 (Mo.App.1972). ¹

Thus, the presumption of accidental death from the violent means of the event accomplishes the role of evidence to acquit the initial burden of the plaintiff to prove that issue, but is not evidence. The presumption imputes the fact of accidental death, but does not constitute evidence of that fact. Connizzo v. General American Life Insurance Company, supra, l.c. 664[2-5]; Di Paoli v. Prudential Insurance Company, supra, l.c. 864[1-4]. It is the kind of presumption which, should nothing further be adduced settles the question--"so he who would not have it thus, must show cause." Borrson v. Missouri-Kansas-Texas R. Co., 161 S.W.2d 227, 230 (Mo.1942). The presumption of accidental death from violent means, as we note, rests on the common experience of love of life and the concomitant probability that a person will not by misconduct deliberately put life at stake. A prima facie case based alone on the presumption of accidental death from a violent cause dissolves in the face of evidence so clear, coherent and certain as to compel one inference only: that the death was from the assault or felony misconduct of the insured--and thus not accidental within the sense of the policy. Ward v. Penn Mutual Life Ins. Co., 352 S.W.2d 413, 420 (Mo.App.1961); Berne v. Prudential Ins. Co. of America, 235 Mo.App. 178, 129 S.W.2d 92, 98[3-7] (1939); Sellars v. John Hancock Mutual Life Insurance Company, 149 S.W.2d 404, 406 (Mo.App.1941). In that event, unless the beneficiary countervails with substantial evidence of accidental death--other than the presumption, the insurer is entitled to judgment. Di Paoli v. Prudential Insurance Company, 384 S.W.2d 861, 864[1-4] (Mo.App.1964); Ieppert v. John Hancock Mutual Ins. Co., 347 S.W.2d 436, 444[1, 2] (Mo.App.1961). In the determination whether the evidence by the insured that death was by accidental means amounts to substantial proof of that issue, the presumption does not weigh--since it is a device of procedure and functions only to fashion a prima facie case, and has no effect as evidence beyond that. Connizzo v. General American Life Insurance Company, supra, l.c. 664[3-5]. In that counterpoise of evidence, the presumption as such is not weighed, but the facts which invest the presumption, are. Connizzo v. General American Life Insurance Co., supra, l.c. 665[10, 11]; Sellars v. John Hancock Mutual Life Ins. Co., supra, l.c. 405[2, 3]; Di Paoli v. Prudential Insurance Company, supra, l.c. 865[1-4].

The insurer contends that the application of these principles to the evidence presented required the trial court to direct a judgment for the insurer, and in default of such action, then by this court on appeal.

The evidence was this: The police found Piva mortally wounded from bullet shots in the early morning, slumped against the wall of the apartment-residence next to the porch. His head was riven by a bullet, as was his shoulder. The wounds were from a .38 calibre weapon. A .22 calibre pistol was found next to Piva, perhaps even in touch with him. Two shells were expended and five live rounds remained in the chamber. In addition, five .22 calibre bullets were found in his garments. The wall where Piva was found slumped was beneath the window of the apartment occupied by one Graves. The window and periphery were perforated by bullet holes, and at least one other penetrated into the Graves apartment and was recovered. They were made by a .22 or .25 calibre weapon. Detective Orr testified that other weapons were discharged during the incident, but only the .22 calibre pistol was recovered. A computer trace for the ownership was not successful. Tests of the pistol yielded no fingerprints. That weapon, according to the admission of plaintiff Piva, was of the kind the insured husband owned. Detective Orr gave opinion that the shots into the Graves apartment had been fired by the decedent Piva. Officer Thistlethwaite testified that based on the physical evidence he could not form an opinion as to whether or not Piva fired the gunshots.

The police were directed to the apartment-residence by the dispatcher who broadcast a report from Graves that a burglary and an attempt to break into that apartment or the one next door [occupied by the owner Morris] was in progress. The first to arrive at the scene was merchant-patrolman Zanatta, and shortly thereafter, regular police officers. On the way to the reported address, both Zanatta and officer Kovak saw a car speed away from the area. The officer gave chase but lost pursuit. The owner Morris informed the police that he was awakened at about 2:00 a.m. by the sound of blows on the door, followed by a scurry of footsteps across the front porch, then around the side of the building accompanied by a fusillade of gunshots. When the activity ceased, Morris arose from the floor and sought out Graves across the hall. Graves came out of his apartment into the common hallway, and limped. There was a red welt across the top of his left foot. Graves was not called as a witness.

General American contends that this evidence--that Piva met death in the participation of an assault or felony--destroyed the presumption of death from accidental means, and in the absence of proof by the beneficiary [other than the presumption itself] that death was by accident, the insurer was entitled to a direction of judgment. To dispel the prima facie case of a beneficiary which rests on the presumption alone [as does the Piva proof] so as to justify a direction of judgment for the defendant, the rebuttal evidence of the insurer must be so clear, coherent and certain as to compel one inference only: that the death was from the assault or felony misconduct of the insured. That inference, in a word, must issue as a matter of...