Union Central Life Insurance Co. v. Sims

• Decision Date: 25 June 1945
• Docket Number: 4-7694
• Citation: 189 S.W.2d 193,208 Ark. 1069
• Parties: Union Central Life Insurance Company v. Sims
• Court: Arkansas Supreme Court

189 S.W.2d 193

208 Ark. 1069

Union Central Life Insurance Company v. Sims

No. 4-7694

Supreme Court of Arkansas

June 25, 1945

Appeal from Crawford Circuit Court; J. O. Kincannon, Judge.

Reversed.

Hill Fitzhugh & Brizzolara, for appellant.

R A. Young, Jr., Pryor & Pryor and Partain, Agee & Partain, for appellee.

Griffin Smith, Chief Justice. McFaddin, J., dissenting.

OPINION

Griffin Smith, Chief Justice.

Double indemnity incident to policies of insurance -- one for $ 1,000, the other for $ 1,500 -- is involved. From judgment on adverse jury verdicts the Company has appealed.

The plaintiff, widow of Lee Sims, alleged that her husband's death occurred through accidental means as defined by the policies. The Company paid the principal sums, but resisted demand for the additional amounts.

The motion for a new trial contains thirty-six assignments. Since we have concluded that the Court erred in refusing to give the defendant's requested Instruction Number 1 (peremptory), it becomes unnecessary to discuss other contentions, except those relating to presumptions.

Each policy provides that ". . . double indemnity benefit shall not be payable if death of the insured shall occur as the result directly or indirectly of any violation of law by the insured."

It is admitted that State Policeman Pritchard forty-three years of age, killed Sims the evening of May 5, 1943, a little after dark. Pritchard and Sowell, also of the State Police force, were working together, but had stopped at the highway intersections near Alma, generally referred to as the "Y." One branch (Highway 71) leads to Fayetteville and beyond. A speeding automobile had been detained by Sowell, who was talking with the driver, when a second car (subsequently found to have been driven by Sims) passed at such rate of speed as to attract attention. Only one headlight was functioning. Sowell called Pritchard's attention to what appeared to be law violations -- that is, driving too fast, and operating with deficient headlight. Jack Faught, a boy Sowell had "picked up" at Ozark, reentered the police car with Pritchard, and Pritchard undertook to overtake Sims, who at the time the officers drew near enough to effectively sound his siren was making sixty-five miles an hour by speedometer check. Pritchard drove alongside the Sims car in an effort to attract the driver's attention. In testifying, he was not able to say definitely that Sims saw him, the statement being, "There wasn't anything to keep him from it." "But," said Pritchard, "the second time I pulled up by him and sounded the siren, he looked around."

The police car was plainly marked "with a wide yellow stripe over the hood that starts at the front and comes back"; also it bore the emblem, "Arkansas State Police." This was painted on the side. Pritchard was in uniform and wore the regulation hat or cap, with other insignia and dress. About half a mile farther the officer made his third attempt to detain the speeding driver; but was prevented from maneuvering into a parallel position when Sims "cut across" to the left, measurably blocking the way while still proceeding at a rapid rate of speed. Pritchard continued to sound his siren at intersections, but did not keep it in continuous operation.

The race proceeded beyond Mountainburg to a point approximately fourteen miles from the Alma "Y." Pritchard testified that in passing through Mountainburg (two miles nearer Alma than where the tragedy occurred) the cars were making sixty-five miles per hour. Young Faught, who watched the speedometer, was quoted as saying the speed was ninety miles. Sims' car was a Ford, 1940 model; Pritchard's was a 1942 Ford.

The highway by which Mountainburg is reached from the south passes through a mountainous section, with a substantial downgrade, followed by comparatively level ground for a short distance before entering the town. Beyond, for a mile or more, the road is level, then a creek is crossed, and again there is a hill, or heavy grade.

According to Pritchard's version, Sims gained while going downgrade to Mountainburg; although, according to the officer, "I was running the limit of my car speed at the time."

In an apparent attempt to evade his pursuer, Sims -- who was then approximately two hundred yards ahead of the police car -- turned into a side road. In commenting on this conduct Pritchard said: "As I raced by I noticed his lights go out and I turned and came back." Pritchard parked his car on the highway approximately fifty feet from Sims, as to whose identity he was still uninformed. He walked the intervening distance, holding a flashlight in his left hand, and directing its beams through the left rear window of the darkened car. In the glare of the flashlight Pritchard saw Sims reach into the glove compartment of the cowl. The officer opened the car door, flashed his light in Sims' face, and said, "Mister, what's wrong with you? I have run you from Alma here. Come out of there." Sims replied, with an oath, "I will come out," and promptly struck Pritchard's hand, knocking the flashlight from it. Pritchard says that he only had a glimpse of the instrument with which he was struck, but thought it was a gun. He retaliated by striking Sims on the forehead with his service revolver, the weapon not having been drawn until Sims became aggressive. Almost instantaneously Pritchard said, "Come on out!"; and Sims, again cursing the officer, replied, "I'll kill you!" -- or, as the officer testified on cross-examination, Sims said (with an oath), "I'll get out and kill you!" Sims then stepped out of his car, and "pretty well straightened up"; whereupon, Pritchard fired one shot.

Dr. Charles S. Holt testified that the bullet entered under the left arm, traveled almost in a horizontal course to the opposite side and lodged in bony structure. Its course was just above the heart. The arch of the aorta was perforated, causing instant death. It was the physician's belief that there was no period of consciousness, since the brain's blood supply was cut off.

When Sims "slumped to the ground" Pritchard heard a gurgling sound indicating physical distress. He impulsively attempted to aid the unfortunate man, and in doing so blood was smeared upon the officer's shirt. This came from the wound inflicted on Sims' forehead when he was struck with the pistol. Pritchard hailed a passing truck and sent for Sheriff Maxey of Crawford County.

Pritchard's companion, young Faught, remained in the officer's car and did not hear enough of the conversations or comments to affirm or contradict the officer in a substantial manner.

. . .

The question is, Was there substantial support for the jury's finding that the insured came to his death through accidental means, and that death was not the result, directly or indirectly, of any violation of the law?

Pritchard apprehended, according to his testimony, that the speeding automobile had been stolen and was driven by the taker. It is insisted, upon the other hand, that Sims probably believed he was being pursued for the purpose of robbery, and that he did not suspect -- or, as a reasonable man, did not have grounds for believing -- that the car following him had an official status. Before starting on his journey Sims telephoned his wife he was going on a trip and that if delayed he might spend the night at his mother's home. Mrs. Sims prepared some clothing for his convenience. The decedent's mother lived near the highway on the side road or trail to which Sims had recourse, and where he was parked when the tragedy occurred.

. . .

The condition of Sims' body, showing fatal bullet wound, created a presumption that death was accidental, and the jury was so instructed. The instruction went further by stating that this presumption attached throughout the trial.

A naked presumption, though sufficient to justify a verdict for the party in whose favor it exists, must nevertheless give way to facts. It is merely a rule of evidence casting upon the defendant the burden of proving that the transaction occurred in a particular way. And even during trial, where it is doubtful from the evidence whether death was caused by accident or by suicide, there is a presumption in favor of accident; and this presumption will stand and be decisive of the case until overcome by testimony which outweighs the presumption. Ruling Case Law, v. 14, pp. 1236-7; Fidelity Mutual Life Insurance Co. v. Wilson, 175 Ark. 1094, 2 S.W.2d 80. In Benefit Association of Railway Employees v. Jacklin, 173 Ark. 937, 294 S.W. 353, Mr. Justice Mehaffy said for the Court that "Even where the proofs of death show that the deceased committed suicide, still it is a question for the jury to determine; and, although such proof has been made by the plaintiff, the presumption is that the deceased did not commit suicide, and that presumption prevails until it is overcome by proof to the contrary." But the same Justice, in the Fidelity Mutual case, supra, held as a matter of law that the contention in favor of suicide should have been sustained.

The precise time during trial when the presumption disappears, if it does vanish, has not been clearly defined by our cases. Mr. Justice Wood, in Watkins v. Reliance Life Insurance Co., 152 Ark. 12, 238 S.W. 10, said that the appellant (plaintiff below) established a prima facie case against the Company when she made proof that her son died as a consequence of violent and external means. "In such cases," says the opinion, "the presumption is that death is accidental, and the burden was upon the appellee Company to overcome the presumption." An expression in Guardian Life Insurance Co. v. Dixon, 152 Ark. 597, 240 S.W 25, is that the presumption "stands until overthrown by evidence...