Powers v. Continental Casualty Company

• Decision Date: 17 April 1962
• Docket Number: No. 16572.,16572.
• Parties: Cecil POWERS, Appellant, v. CONTINENTAL CASUALTY COMPANY and St. Paul Fire and Marine Insurance Company, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

301 F.2d 386 (1962)

Cecil POWERS, Appellant, v. CONTINENTAL CASUALTY COMPANY and St. Paul Fire and Marine Insurance Company, Appellees.

No. 16572.

United States Court of Appeals Eighth Circuit.

April 17, 1962.

Robert J. White and James K. Young, Russellville, Ark., for appellant; W. H. Schulze, Russellville, Ark., was with them on the brief.

Alston Jennings, Little Rock, Ark., for appellee; J. W. Barron, Little Rock, Ark., was with him on the brief.

Before JOHNSEN, Chief Judge, and VAN OOSTERHOUT and MATTHES, Circuit Judges.

PER CURIAM.

This is an appeal by plaintiff Powers from a judgment in favor of the defendants, Continental Casualty Company (hereinafter Continental) and St. Paul Fire and Marine Insurance Company (hereinafter St. Paul). The judgment was entered pursuant to a jury verdict in favor of the defendants. Jurisdiction, based on diversity of citizenship, is established.

On June 15, 1959, plaintiff Powers, a resident of Russellville, Arkansas, went to Fort Smith, Arkansas. He there purchased a $50,000 accident insurance policy from St. Paul through the agency of Donaho & Son. He then proceeded to the Bicknell agency in Fort Smith and purchased another $50,000 accident insurance policy from Continental. Each policy was issued for a period of 60 days, against the risk of accidental bodily injury. Thirteen days later, while on a short fishing trip with three other persons, plaintiff was shot in the back of the left arm when a 12-gauge shotgun, borrowed and brought on the trip by one of his companions, discharged. Because of such injury it was necessary to amputate plaintiff's left arm above the elbow.

Plaintiff sued each of the defendants in an Arkansas state court, seeking to recover $25,000 from each under the terms of the policies described above. Defendants removed the actions to the United States District Court for the Eastern District of Arkansas, where they were consolidated for trial with a third action by plaintiff against Underwriters at Lloyd's, London (no longer involved in this action) from whom he had purchased a $100,000 accident insurance policy on May 11, 1959. This policy was purchased through an agent in Russellville.

Defendants admitted the issuance, validity and coverage of their policies but specifically denied plaintiff's allegation that the injury he received was accidental. The only fact issue submitted to the jury was whether the gunshot wound which necessitated the amputation of the left arm was an accidental injury. We observe that on this appeal no criticism is made of the court's instructions nor any errors asserted with reference to the reception or rejection of evidence.

Plaintiff at the close of all of the evidence moved for a directed verdict "for the reason there is no substantial testimony in this record that the loss of the arm was by other than accidental means." After verdict for defendants, plaintiff made motion for judgment in accordance with his motion for directed verdict, and in the alternate for a new trial. All such motions were overruled. Plaintiff asserts that the court erred in overruling each of said motions.

We will first consider plaintiff's contention that the court erred in refusing to direct a verdict in his favor. In an action to recover accident insurance proceeds the burden is upon the plaintiff to allege and prove that the injury was accidental within the terms of the policy. Aetna Life Ins. Co. v. Taylor, 128 Ark. 155, 193 S.W. 540; National Life & Accident Ins. Co. v. Hampton, 189 Ark. 377, 72 S.W.2d 543, 544; Mutual Ben. Health & Accident Ass'n v. Basham, 191 Ark. 679, 87 S.W.2d 583, 586; 21 Appleman, Insurance Law and Practice, § 12141. Thus, the burden was on plaintiff to establish the fact that his injury was accidentally incurred.

It is an exceptional case wherein the party on whom rests the burden of proof is entitled to a directed verdict in his behalf. 88 C.J.S. Trial § 257(g).

"A verdict upon an issue of fact should not be directed in favor of the party who has the burden of proof with respect thereto, unless such fact is admitted, or is established by the undisputed testimony of one or more disinterested witnesses and different minds cannot reasonably draw different conclusions from such testimony. Douglass v. Flynn, 43 Ark. 398; St. Louis, I. M. & S. R. Co. v. Coleman, 97 Ark. 438, 135 S.W. 338; Kesterson v. Hays, 137 Ark. 592, 209 S.W. 721; Smith v. McEachin, 186 Ark. 1132, 57 S.W.2d 1043; Pickens v. Westbrook, 191 Ark. 156, 83 S.W.2d 830." Woodmen of the World Life Ins. Soc. v. Reese, 206 Ark. 530, 176 S.W.2d 708, 712.

In Commissioner of Internal Revenue v. Duberstein, 363 U.S. 278, 290-291, 80 S.Ct. 1190, 4 L.Ed.2d 1218, the Supreme Court states: "Where a jury has tried the matter upon correct instructions, the only inquiry is whether it cannot be said that reasonable men could reach differing conclusions on the issue."

Defendants here have denied plaintiff's allegation that the injury was accidental. While plaintiff has offered testimony to establish the accidental nature of his injuries, we cannot say from the record as a whole that plaintiff has established as a matter of law that he is entitled to a directed verdict. Plaintiff and his fishing companion Tucker are the only witnesses who purported to testify as to the facts surrounding the discharge of the gun. Their companions heard the discharge of the gun but were not in a position to see and did not attempt to testify as to the facts relating to the shooting. The testimony of plaintiff and Tucker if believed would support a finding that the shooting was accidental. However, it is obvious from the verdict that the jury did not accept this testimony. Arguments to the jury were completed at 10:30 a. m. The jury returned its verdict for defendants at 11:40 that same morning. The court by denying the motion for new trial expressed its belief that the jury had reached a permissible conclusion upon the evidence.

In Elzig v. Gudwangen, 8 Cir., 91 F.2d 434, 440, we discussed the effect to be given by the jury to uncontradicted evidence and among other things stated:

"It is elementary that in the trial of an action at law, the jurors are the sole and exclusive judges of the facts, of the credibility of the witnesses, and of the weight of the evidence. Evidence which is uncontradicted is not necessarily to be accepted as true. Its weight and the credibility of the witnesses who gave it are usually for the jury to determine."

The factfinder is not compelled to believe the testimony of a witness even if it is uncontradicted. Northwest Airlines, Inc. v. Rowe, 8 Cir., 226 F.2d 365, 371; Noland v. Buffalo Ins. Co., 8 Cir., 181 F.2d 735, 738 This rule has particular application in the case of an interested witness such as the plaintiff. It would also seem that Tucker may have a personal interest in supporting the accident theory as it was defendants' contention that Tucker fired the gun. The evidence discloses that Tucker was at a place where he could reach and discharge the gun and that he was the only person in such position.

Where there were no other eyewitnesses who could contradict directly the testimony of plaintiff and Tucker as to the...