Warren v. Pilot Life Ins. Co.
| Decision Date | 08 June 1940 |
| Docket Number | 310. |
| Citation | 9 S.E.2d 479,217 N.C. 705 |
| Parties | WARREN v. PILOT LIFE INS. CO. |
| Court | North Carolina Supreme Court |
Smith Wharton & Hudgins, of Greensboro, and J. B. James, of Greenville, for appellant.
Albion Dunn, of Greenville, and H. Hannah, Jr., of Rocky Mount, for appellee.
This is the same case reported in 212 N.C. 354, 193 S.E. 293, and 215 N.C. 402, 2 S.E.2d 17, where the material facts are set forth.
In actions such as this upon the provision of a policy of insurance against death by accident or accidental means where unexplained death by violence is shown, nothing else appearing, without the existence of some presumption, the cause of death might be left in the field of speculation. Was the death caused by accidental means, or was it a case of suicide, or was it an intentional and unlawful killing? Under these circumstances the law presumes the lawful rather than the unlawful. Thus the rule arises that where an unexplained death by violence is shown, nothing else appearing, it is presumed that the death resulted from accidental means. When however, there is evidence tending to explain the cause of death, it becomes a question of fact for the determination of the jury. On the issue thus raised, under the decisions of this Court on former appeals in this case, such decisions constitute the law of the case and we are bound thereby.
Even so, the question here presented is different from those discussed in the former opinions and the substance of the testimony of Miss Phelps is material. It is more in detail than on the former trial and throws an entirely different light upon the occurrence.
She testified, in part, as follows: In response to a question as to how the pistol was pointed the witness illustrated by the use of a pencil which was held diagonally in front of her face and pointed downwardly to her left. That was toward the deceased.
Conceding that when death by violence is shown, nothing else appearing, a defendant, who seeks to avoid liability on the grounds that the death resulted from bodily injuries inflicted intentionally by another, has the burden of going forward with evidence--that is, that evidence of death by external violence is sufficient to take the case to the jury, Warren v. Pilot Life Ins. Co., 215 N.C. 402, 2 S.E.2d 17, something more than unexplained death by violence here appears.
There is no unqualified admission in the answer. Thus in the absence of evidence from the defendant, the plaintiff, without introduction of evidence, would not be entitled to judgment on the pleadings or to a directed verdict. And yet the Judge held that the burden of going forward with the evidence rested upon the defendant without any evidence whatsoever from the plaintiff. She was not even required to offer so much of the admission in the answer as tended to show death by external violence. The defendant was thereby deprived of the right, at least, to cross examine the principal witness heretofore relied upon by the plaintiff. Whether this constituted error we need not now decide, for the defendant elected to offer its evidence from which it appears that the death of the deceased was proximately caused by external violence.
The defendant, having proceeded with its proof as required by the Court, then tendered its prayer for instructions. If all of the evidence offered by the defendant--the plaintiff having offered none--tends to explain the death by violence and to show that the death resulted from a wound intentionally inflicted by another, then as a matter of law, the defendant was entitled to have the Court instruct the jury in accord with its prayer. Even though the evidence was such as to require the submission of an issue, whether the testimony offered, if believed and accepted, is sufficient to prove a contested fact presents a question of law. Spruill v. Northwestern Mut. Life Ins. Co., 120 N.C. 141, 27 S.E. 39--in which there was a directed verdict as to suicide under a similar provision,--State v. Prince, 182 N.C. 788, 108 S.E. 330; Reinhardt v. Life & Casualty Ins. Co., 201 N.C. 785, 161 S.E. 528; McIntosh's P. & P., 632; Peterson v. Suero, 4 Cir., 101 F.2d 282, and cases there cited. The rule as approved by the cited and many other decisions is simply stated in McIntosh's P. & P., supra, as follows: "If the facts are admitted or established and only one inference can be drawn from them, the Judge may draw the inference and so direct the jury."
Thus on this appeal we have presented the one question: Does the evidence offered by the defendant, if believed, establish an intentional killing?
The occurrences related by Miss Phelps were instantaneously contemporaneous. The door opened and a man caught her around her shoulders. She put her hand up and the pistol fired. As the door opened he shot. She knocked the pistol up and at that instant the gun fired. Thus, it appears that the door was opened, she was grabbed and the pistol fired at the same instant. When the pistol fired it was pointed diagonally in front and across her body, downward to the left where the deceased was sitting leaning over adjusting his radio. After inflicting a fatal wound upon the deceased and after dragging Miss Phelps from the car, Tate then went back to the automobile and looked in, apparently for the sole purpose of discovering whether he had effectively eliminated resistance from that source. Having satisfied himself in that respect he proceeded in his efforts to ravish her.
There is only one reasonable inference to be drawn from this evidence. Tate, a man of diabolical heart, bent on mischief, for the purpose of criminally assaulting the woman and with the intent to remove any possible interference, deliberately incapacitated the man so that he might not come to her aid. As stated by Devin, J., in Warren v. Pilot Life Ins. Co., supra [215 N.C. 402, 2 S. E.2d 18], "Indeed, all the evidence tends to show that his [Tate's] purpose with respect to her [Miss Phelps] was to assault her." That purpose Tate could not hope to accomplish without disabling, by violence, the deceased who was her companion and fiance. That this was his object is plainly demonstrated by the manner in which he threw open the automobile door, aimed his pistol at Miss Phelps' escort and threw his other arm around Miss Phelps. He wanted her alive and not dead. He wanted the man either dead or so incapacitated that he could not render her aid and assistance. He acted accordingly by deliberately shooting the man and then assaulting the woman.
The pointing of the pistol at the deceased constituted a misdemeanor and one who commits an unlawful act is presumed to intend the natural consequence thereof and, upon the evidence on this record, eliminating consideration of the intent of Tate to commit a felony, he would be guilty of murder in the second degree even though he first pointed the pistol at Miss Phelps and it was so deflected when fired as to inflict a fatal wound on Warren.
Conceding that the presumption of intent does not apply in a civil action as against a third party, still the only reasonable inference to be drawn from this testimony leads irresistibly to the conclusion that Tate shot intentionally for the purpose of incapacitating the deceased. He had the pistol drawn, he was bent on an unlawful purpose which could be accomplished only when Miss Phelps was alive and only in the event that her companion was incapacitated. Can it be said with any degree of reason that the evidence shows other than that he intended to use the weapon to prevent resistance from or interference by her companion?
It is true there is evidence that Miss Phelps, in her struggle, threw up her hand and struck the pistol at the time it was pointed toward the deceased, but there is no evidence that in striking the pistol she either materially deflected it or caused it to discharge. Thus, this item of testimony does not contradict the other testimony, nor does it require a different conclusion.
It is argued, however, that this blow might have caused the pistol to fire. It is a matter of common knowledge that that pistols are fired by pulling the trigger and that, ordinarily, a pistol will not explode from a blow. The one is the usual and expected. The other is the unusual and exceptional. Certainly there is no evidence that this one could be fired in that manner.
The mere simultaneousness of the blow and of the discharge of the pistol does not prove, and is alone not evidence of, the one as the cause of the other. It is as reasonable to suppose that the discharge of the pistol caused the blow to be struck as it is to assume that the striking of the blow caused the murderer to fire the shot. It will be noted that Miss Phelps does not even say that "immediately" after she struck the blow the pistol fired. She says the blow and the shot were simultaneous. Accepting her precise statement, it negatives the idea that the blow caused the shot to be fired.
When we venture to assume that by striking the pistol in her struggle with Tate Miss Phelps caused it to fire we are venturing into a field of pure surmise and...
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