Wharton v. New York Life Ins. Co.

• Decision Date: 01 October 1919
• Docket Number: 173.
• Citation: 100 S.E. 266,178 N.C. 135
• Parties: WHARTON v. NEW YORK LIFE INS. CO.
• Court: North Carolina Supreme Court

100 S.E. 266

178 N.C. 135

WHARTON v. NEW YORK LIFE INS. CO.

No. 173.

Supreme Court of North Carolina

October 1, 1919

Appeal from Superior Court, Pamlico County; Daniels, Judge.

Action by Lovie T. Wharton, administratrix, against the New York Life Insurance Company. Judgment for plaintiff, and defendant appeals. No error.

Letters of administration, issued on a proper finding of residence cannot be collaterally attacked on the ground of different residence.

This was an action on a $5,000 insurance policy on the life of Raymond M. Wharton, with the following additional provision:

"Or double the face of this policy upon receipt of due proof that the death of the insured was caused directly by accident while traveling as a passenger on a street car railway train, steamboat, licensed for transportation of passengers, or other public conveyance operated by a common carrier."

And with the further provision:

"In event of self-destruction during the first two years, whether the insured be sane or insane, the insurance under this policy shall be a sum equal to the premium thereon, which has been paid to and received by the company, and no more."

The defendant set up the defense that--

"The death of plaintiff's intestate was caused by his own act of self-destruction."

The jury found the issues as follows:

(1) "Was the death of the said Raymond M. Wharton caused directly by accident while traveling as a passenger on a railroad train operated by a common carrier? Answer: Yes.

(2) Was Raymond M. Wharton's death due to self-destruction? Answer: No.

(3) In what amount, if any, is defendant indebted to the plaintiff? Answer: $10,000, with interest from the 20th day of June, 1917, at the rate of 6 per cent. per annum until paid."

Judgment accordingly. Appeal by defendant.

James H. McIntosh, of New York City, Moore & Dunn, of Newbern, and James H. Pou, of Raleigh, for appellant.

Z. V. Rawls, of Bayboro, and D. L. Ward and Ward & Ward, all of Newbern, for appellee.

CLARK C.J.

It is admitted that the plaintiff's intestate, R. M. Wharton, on June 3, 1917, boarded a train at Greensboro, with ticket to Goldsboro, which train was due to arrive in Raleigh at 4:20 a. m. It was also in proof that the deceased bought a 1000-mile book at Greensboro, and exchanged 189 miles of it for a ticket to Newbern, and rode in the white day coach from Greensboro to Raleigh, and was killed by the same coach as the train was backing out of the Raleigh station about 4:35 a. m., and that he had on his person the mileage book and coupon from Greensboro to Newbern, and was on his way to his farm and home in Pamlico county. It was also in evidence that his family was in Greensboro for the purpose of educating his children, and that he had a small grocery store there. It was also in evidence that he stepped off the coach at Raleigh, but remained in the station, and was walking up and down on the concrete pavement between the tracks, and was some 10 feet from the track when "All aboard!" was called; that he was then either standing or sitting on a box, and started towards the backing train; that in some way he got on the track between the Pullman and the day coach, and was run over and killed.

The defendant offered evidence which it contended should have satisfied the jury that he deliberately crawled under the backing train for the purpose of being run over. The plaintiff offered evidence, that it contended should satisfy the jury, that the deceased ran to get on the day coach, and, the door of the vestibule to that and to the Pullman being closed, he stumbled or fell, and was caught on the track between that and the Pullman, and was run over and killed. They also offered evidence tending to show that the deceased had no motive to commit suicide, and that his death was entirely accidental.

This evidence was earnestly discussed here, and doubtless before the jury. The jury, however, found that the death of the deceased was caused by an accident, and not as an act of self-destruction. It can serve no purpose to elaborate the testimony, for there was evidence tending to sustain the theory that the death was caused by an accident, and the burden of proof was upon the defendant to establish its allegation that the death was deliberate self-destruction. The function of the jury was to determine the fact. The burden of proof being on the defendant to prove its defense, the court could not adjudge that an affirmative defense is proven, for that involves the credibility of the witnesses, which is a matter for the jury. Spruill v. Insurance Co., 120 N.C. 141, and numerous citations thereto in the Anno. Ed., 27 S.E. 39. Besides, there was evidence to go to the jury that the death of the deceased was accidental.

This is not a question whether the deceased was guilty of contributory negligence, for, if it were conceded that he was, this does not of itself prove an intent to commit suicide. The presumption of law also is against self-destruction, and the burden is...