Woodmen of the World v. Wright

• Citation: 60 So. 1006,7 Ala.App. 255
• Parties: WOODMEN OF THE WORLD v. WRIGHT.
• Decision Date: 04 February 1913
• Court: Alabama Court of Appeals

60 So. 1006

7 Ala.App. 255

WOODMEN OF THE WORLD v. WRIGHT.

Court of Appeals of Alabama

February 4, 1913

Appeal from Circuit Court, Marshall County; W. W. Haralson, Judge.

Action by Isham A. Wright against the Woodmen of the World on a benefit certificate. Judgment for plaintiff, and defendant appeals. Affirmed.

The following charges were given at the instance of the plaintiff:

"(1) The words 'die by his own hand or act' in a policy of life insurance mean in general terms suicide.

"(2) The court charges the jury that the clause in the policy which states that, 'if the holder of said policy should die as a consequence of the violation or attempted violation of the laws of the state of Alabama,' the question is with you as to whether he died as a consequence of the violation or attempted violation of the laws of Alabama."

The following charges were refused the defendant:

"(1) The court charges the jury that if they are reasonably satisfied from the evidence that the deceased, B. M Wright, shot himself, your verdict must be for the defendant.

"(2) I charge you, if you are reasonably satisfied that B. M. Wright came to his death while engaged in a violation of the law, then it would make no difference whether he shot himself intentionally or not, if you are reasonably satisfied that he did kill himself, and, if you so find, your verdict should be for the defendant.

"(3) If B. M. Wright while engaged in a violation of law shot himself, your verdict should be for the defendant."

"(6) There is no evidence tending to show that the deceased died from any other cause than that of a pistol wound."

"(8) If the evidence shows to that reasonable satisfaction that deceased was at the time he was shot walking along a public road with a pistol in his hand, and if he was shooting along or across said public road, and shot himself, whether intentionally or accidentally, your verdict should be for the defendant."

"(11) This charge and charges 12, 15, and 16 predicated a verdict for defendant if the jury found from the evidence that deceased was violating the law by carrying a pistol if he was on premises not his own, were under his control, while walking along a public road or was firing a pistol across or along the road, and he either shot himself intentionally or accidentally.

C. B. Kennamer and John A. Lusk & Son, all of Guntersville, for appellant.

William C. Rayburn, of Guntersville, for appellee.

PELHAM, J.

The appellee as the beneficiary named in a certificate or policy of insurance brought suit to recover of appellant the amount alleged to be due on the beneficiary certificate issued by the appellant, a fraternal and mutual benefit association.

The defendant association set up by special pleas certain conditions or stipulations of the policy, whereby and under the conditions and terms of which it claimed there could be no recovery because of the alleged violation of these conditions of the policy by the insured. Plea No. 1 sets up as avoiding the policy a condition to the effect that, if the insured member should die in consequence of the violation or attempted violation by him of the laws of the state, the policy shall be void. Plea 2 sets up as an avoidance of liability on the policy the same condition of the policy as set up in plea No. 1, but alleges a different violation of the law than is alleged in plea No. 1. Plea No. 3 alleges a false representation made in the application for the policy as to the habits of the insured in indulging in intoxicants. Plea No. 4 also alleges a false representation with respect to a similar matter to that relied upon in plea No. 3. Plea No. 5 sets up a condition contained in the policy rendering it void if the assured should die by his own hand or act. The case was tried on issue joined on the pleadings as outlined.

The plaintiff testified on the trial of the case that he was the beneficiary named in the policy or certificate, to the death of the insured, and introduced the beneficiary certificate in evidence.

The evidence introduced on the trial in behalf of the defendant tended to show that the insured came to his death from a pistol shot wound fired by his own hand under circumstances and conditions that made it a question for the jury to say whether or not death was caused by the insured voluntarily and intentionally taking his own life or having done so accidentally and unintentionally. The shot was shown to have been fired by the insured while standing in the public road, and, if intentionally fired, would be in violation of a statute of the state (Code, § 7727), and his death could probably be said to have been brought about in consequence of a violation of this law. But even if it be conceded that the act of shooting which was in itself a violation of the law, if intentionally committed, proximately led to the death of the assured as the natural and reasonable consequence of the act, it was nevertheless a question for the jury to determine from the conflict in the evidence whether or not the shooting was an intentional act, for, if not a voluntary act, it could not, of course, be a violation of the law. The defenses set up by these two pleas resolve themselves into practically the same proposition, and that is whether or not the shooting was an intentional, voluntary act, and under the evidence set out in the bill of exceptions that was a disputed fact for the determination of the jury; the presumption being in favor of the theory of accidental death where the evidence leaves the question in doubt as to being accidental or suicidal. N.Y. Mut. L. Ins. Co. v. Wiswell, 56 Kan. 765, 44 P. 996, 35 L. R. A. 258.

The plea (No. 1) setting up an avoidance of the policy because of the illegal act of the assured in carrying a pistol about his person or on premises not his own or under his control "which was either intentionally or accidentally discharged by him" is not supported by the evidence under the holding in Isaiah's Case (Sup.) 58 So. 53, in which carrying a pistol openly in the hand on the public highway is held not to be a violation of the law.

The plaintiff's averment in the fourth count of the complaint claiming the sum of $100 for the erection of a monument "as provided for in said beneficiary certificate" is a sufficient statement, and was not subject to the demurrers interposed.

The questions propounded to the jurors upon their voir dire to ascertain if any of them were members of the organization being sued were not improper, and besides, if error, is shown to have been without injury to the defendant, as none of the jurors responded that they were members, and no juror was excused on that account. It is entirely proper, and is in fact the duty of the court, to purge the jury and endeavor to secure in the trial of cases as far as possible an absolutely unbiased panel. Calhoun County v. Watson, 152 Ala. 554, 44 So. 702.

There was no error in refusing to allow the defendant to ask the plaintiff on cross-examination if his son, the deceased, had not killed himself to keep some one else out of trouble. The plaintiff was shown not to have been present when his son met his death, and could know nothing of the facts or circumstances. He subsequently testified that he did not know anything of the young man getting into trouble and having committed the act of self-destruction to save some one else, and whether or not he had written some one to that effect could not relieve the evidence the defendant sought to elicit from being entirely hearsay, or a mere conclusion based on matters that would render it inadmissible.

The mere fact, if it was a fact, that the assured had a pistol a week before the killing occurred, could have no tendency to shed light on the issues involved.

There was no error in allowing the defendant's witness Walls to testify on cross-examination by the plaintiff that the assured after he had shot himself made declarations showing a hope or desire to recover. It was relevant for the purpose of showing whether or not the act was intentional, and the defendant had examined this witness on direct examination with reference to what the assured had said in this connection for a similar purpose. All this evidence was relevant and proper to be considered and weighed by the jury as tending to show the character of the transaction and as bearing on the nature of the act. There was no variance between the policy or certificate offered in evidence and that declared on in the complaint. It was further identified by being shown to be the same certificate as that issued on the application introduced in evidence by the defendant.

In giving charge No. 1 requested by the plaintiff, construing "die by his own hand or act" as it occurred in the policy to mean "suicide," the court was free from error. The charge is explanatory of charge 6 given at...