Sovereign Camp, W.O.W., v. Gunn

• Citation: 229 Ala. 508,158 So. 192
• Decision Date: 22 November 1934
• Docket Number: 7 Div. 257.
• Parties: SOVEREIGN CAMP, W. O. W., v. GUNN.
• Court: Alabama Supreme Court

158 So. 192

229 Ala. 508

SOVEREIGN CAMP, W. O. W., v. GUNN.

7 Div. 257.

Supreme Court of Alabama

November 22, 1934

Rehearing Denied Jan. 3, 1935.

Appeal from Circuit Court, Shelby County; E. P. Gay, Judge.

Action on a policy of life insurance by Katherine R. Gunn against the Sovereign Camp of the Woodmen of the World. From a judgment for plaintiff, defendant appeals.

Reversed and remanded.

Wm. B McCollough and Jim Gibson, both of Birmingham, for appellant.

L. H Ellis and W. W. Wallace, both of Columbiana, for appellee.

BROWN Justice.

This case has been considered on two appeals previous to the present appeal. Sovereign Camp, W. O. W., v. Gunn, 224 Ala. 444, 140 So. 410; Id., second appeal, 227 Ala. 400 150 So. 491.

The case as presented on the last trial and this appeal is different in only one material aspect. On the first two trials the complaint contained counts declaring on the general obligation of the policy insuring the life of Willie C. Gunn, and naming his wife, Mary M. Gunn, as the beneficiary, and also a count declaring on the special obligation providing for double indemnity, but on the last trial the counts declaring on the general obligations were eliminated by amendment, and the case went to trial on the third count claiming double indemnity. That count avers that the death of said Gunn "resulted directly and independently of all other causes from bodily injury effected solely through external, violent and accidental means." (Italics supplied.)

The general issue pleaded by the defendant, the averments of count 3, imposed on the plaintiff the burden of proving, not only that said death resulted directly from bodily injury effected solely through external, violent, and accidental means, but that said death resulted from such accidental means "independently of all other causes"; that is, it was not the result of violence intentionally invited by the insured, or violence intentionally inflicted by the beneficiary Mary M. Gunn, or brought about through her connivance with another. Protective Life Ins. Co. v. Swink, 222 Ala. 496, 132 So. 728; Sovereign Camp, W. O. W., v. Gunn, 227 Ala. 400, 150 So. 491; Prudential Casualty Co. v. Curry, 10 Ala. App. 642, 65 So. 852.

To meet and carry this burden, the plaintiff relied, mainly, on the testimony of the witness Mary M. Gunn, to the general effect that while witness and the insured, her husband, were traveling along the highway in an automobile being driven and controlled by witness, three men held them up and robbed them. She testified, in part: "The night Mr. Gunn was shot we were on a trip to Jacksonville. We left the station about 6:00 or 6:30 o'clock, but took no definite note of the time. We had started to Jacksonville where our daughter was going to be in the commencement exercises that night. We had a pistol there at the store and we got it from Jack Persons. He loaned it to us. I would say it was several weeks before Mr. Gunn got killed. The occasion for Mr. Persons leaving the pistol there was when he came there he said that the gun Mr. Gunn had was just a toy gun and he would let us have one that was a good one. Mr. Persons was a policeman, we had just been robbed, and he was up there investigating a robbery. We had a pistol and a gun in the store and they were taken when the store was robbed. My husband had been able to get a little pistol that Persons said was no account but he loaned us a good one. This was the occasion for us having the pistol at the store. On the night we made the journey to Jacksonville we had the pistol in the car. We were accustomed to carrying the pistol on trips like this, and that was nothing unusual about it. We always carried it. When we came to this little bridge beyond Talladega, this side of Oxford and this side of Choccolocco Creek, there is a little bridge just before you get to Choccolocco Creek. Choccolocco Creek has a bridge over it of steel construction. The bridge wasn't a covered bridge, but steel supported, to the best of my recollection. This trouble occurred on this side of that bridge at another small bridge. This bridge was very close to the other bridge, but I can't tell you just how far. As we were going along we saw a car parked on the right side of the road, headed toward Anniston and out in front of there were three men, two tall and one low, and they waved us to stop, and we had passed their car and were almost straight in the road when they flagged ours. They were some distance in front of our car. They flagged us with their hands. Mr. Gunn asked me was I going to stop, and I says, 'Yes, we may can help them some way.' We stopped and there were two tall men came on my side and the low one on Billy's side. Billy is my husband, and they opened the door on my side and one of them says, 'Hands up, give us your money.' I suppose that just one of them opened the door and he said, 'Hands up, give us your money.' It was dark. The one on Billy's side was a small man, and the two large men were on my side of the car. When they said, 'Hands up, give us your money,' I said, 'I will give you all I have,' and he reached across my bosom towards Billy, and they scuffled across me and a shot rang out. He reached right across my bosom towards my husband. He just fell across me with his entire body, just went across me. I do not know what my husband was doing while this was going on. He was down over me and I couldn't see anything, and he was struggling with my husband, and the shots rang out. I will say there were some two or three shots fired. After the shots were fired or after some were fired Billy said, to me, 'Mother are you hurt?' I said, 'Yes, I am shot.' I said, 'I have a sweet baby to live for,' I said, 'I will give you all I have.' At this time the man was still across me scuffling with Billy. When he began raising up I told him, 'I will give you all I have,' he said, 'Hush, lassie, or I will hurt you.' When he raised up he was still holding my left arm. And I reached down to get the purse and gave it to him. My purse was lying under the edge of the seat of the car on the floor. I had a pair of shoes I had pulled off on the floor and I had put on a pair to drive in. I used these shoes to drive the car. The others were dress shoes to use when I got to Jacksonville. When I reached down to get the purse there was a car coming meeting us. It was on beyond the bridge when I first saw it. I put the car in gear while he was holding me with his arm and pulled loose from him and went on and passed this car just before I got to the covered bridge. * * * After I started my car up I did not notice which way the men went. The only thing indicating there was a car starting up was a little light come on in the mirror of my car. I could see the light behind me in the mirror. I drove on and met this other car. I kept going. I asked for help. I said, 'Murder, help, help, murder.' I couldn't tell you how fast I was driving, and I also screamed and hollowed. I met another car before I got to Oxford, up at the bend of the road. I hollowed again but it kept going. I know that Oxford was only a short distance ahead because I had been over the road before. The nearest house to the place where my husband was shot is Mrs. Canada's, I have been back there since and saw the Canada house. Her house is not so very far from them, but I can't remember just exactly how far it is. That night I did not see the Canada's house or anything like that. I didn't see any house at all until I got almost in the confines of Oxford. When I got into Oxford I hollowed for help and I was screaming and a man came running out into the road. We went...