Warren v. Pilot Life Ins. Co.

• Decision Date: 12 April 1939
• Docket Number: 309.
• Parties: WARREN v. PILOT LIFE INS. CO.
• Court: North Carolina Supreme Court

2 S.E.2d 17

215 N.C. 402

WARREN v. PILOT LIFE INS. CO.

No. 309.

Supreme Court of North Carolina

April 12, 1939

This case was here at Fall Term, 1937, and is reported in 212 N.C 354, 193 S.E. 293, where the facts sufficiently appear. The action was instituted to recover double indemnity under the accident insurance provisions of a policy issued by defendant on the life of Alexander Warren.

From judgment upon an adverse verdict, defendant appealed.

Smith Wharton & Hudgins, of Greensboro, and J. B. James, of Greenville, for appellant.

H Hannah, Jr., and Albion Dunn, both of Greenville, for appellee.

DEVIN Justice.

The questions presented by this appeal relate principally to the court's instructions to the jury on the burden of proof, and to the court's rulings as to the admission of testimony, to which exceptions were noted.

Appellant contends that the court erred in charging the jury that the burden of proof as to the determinative issue of defendant's liability for double indemnity, upon the pleadings in the case, was upon the defendant. There is a distinction, with respect to the burden of proof, between the rule applicable to actions upon ordinary life insurance policies containing exceptions, where proof of policy and death of insured imposes upon the insurer the burden of sustaining the pleaded exception, and the rule applicable where the insurance is against death by accident or accidental means. In the latter case well considered authorities in this and other jurisdictions support the view that where unexplained death by violence is shown, the defendant who seeks to avoid liability on the ground that the death resulted from bodily injuries inflicted intentionally by another person, 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--but that the burden of the issue of death by accidental means still remains upon the plaintiff. Gorham v. Pacific Mut. Life Ins. Co., 214 N.C. 526, 200 S.E. 5; New York Life Ins. Co. v. Gamer, 303 U.S. 161, 58 S.Ct. 500, 82 L.Ed. 726, 114 A.L.R. 1218; Jefferson Standard Life Ins. Co. v. Clemer, 4 Cir., 79 F.2d 724, 103 A.L.R. 171.

However, considering the pleadings in this case, we are not disposed to hold for error the instructions given by the court below, of which the defendant now complains. This was the view expressed by this court in the former appeal which has thus become the law of the case.

The defendant offered on the trial to show that one Willie Tate was duly convicted of murder in the first degree for the felonious slaying of insured, and that his conviction having been affirmed on appeal by this court (State v Tate, 210 N.C. 613, 188 S.E. 91), Tate suffered death for the wilful and intentional slaying of the insured. Upon objection, this evidence was excluded, in the view that the plaintiff herein was not bound by the verdict and judgment in the criminal...