*1 Richmond Company Kirby Life Insurance v. The Frances Virginia. 2, 1976. September No. 751127. Record Present, theAll Justices.

Evans B. (Arthur on E. Smith, brief), for in error. Jessee plaintiff C. Thomas Burton, (Kenneth E. Fox Trabue; & Hunter, Jr. Trabue, brief), for defendant in error.

F Anson, C. delivered the J., of the court. this action Atkinson, Frances against brought Kirby plaintiff, recover bene- (insurer) Insurance of Virginia Company a life insurance under the accidental death ficiary provisions Atkinson).1 (decedent issued husband, to her Darrell Lee *2 letter in a trial The case the was tried without and judge, jury, accidental was not caused found that Atkinson’s death by opinion, resulted self-destruc- means, as contended the from by plaintiff, ex- the or self-inflicted one of tion within the terms of clusions. for the insurer. was entered Judgment accordingly here, B,

Section Part of the insurance relevant provides: policy, death for accidental insured hereunder “[I]f any employee, violent, . ex- . . shall have sustained bodily injuries solely ternal and ... means, accidental and . shall suffered . . [death] hereof, will and limitations terms Company pay, subject however, .; amount of the insurance . that . specified provided, in no case shall of accidental death . . . insurance any payment made for death . . . or or resulting directly indirectly, wholly par-

from: “(1) while, Self-destruction self-inflicted sane in- injury, . .” sane. .

The evidence shows 1971, Atkinson, that an em- on November of the School Board, was admitted to Roanoke ployee Wythe County Memorial for treatment of an inflamma- enteritis, Hospital regional bowel disease. 10, 1971, was on December tory Surgery performed he was thereafter in a room on the floor of the placed eighth hospital. Atkinson December until progressed normally surgery 1971. it was noted that that Atkinson confused During day appeared He told nurses, his and wife that began hallucinating. physicians, he was He staff. believed the was being gassed by hospital gas the vents his in room. His condition coming through diagnosed as toxic restraints were physician psychosis. Body applied decedent from bed, out of his and he was medi- prevent getting given cation to him. 4:00 o’clock next quiet Approximately morning, his wife and asked her come and him be- telephoned get cause were him and to kill him.” At that “they gassing trying point, a nurse came into his room, took receiver, told the wife telephone that he was confused and not to about him. worry

Atkinson was last seen alive before 7:00 a.m. there- Shortly after, he was dead, discovered on the outside of the hos- lying ground 1.The had the face amount company paid plaintiff policy. evi- stairwell. The under an window

pital story eighth five about seen dence shows the window was when closed Decedent’s minutes before the discovered. decedent’s body found on radiator the stairwell. Photographs hospital gown introduced location window and radiator were showing evidence.

An restraints were examination of bed decedent’s room showed the hall, still A down the room, intact. trail of blood extended from the stairwell, into sill. onto the radiator and window Decedent’s went testified it was his physician out of the he was volition, window of his own because he feared being or “done in” staff, he wanted to gassed hospital this imaginary peril.

Plaintiff ex- violent, contends that death was caused decedent’s ternal, and accidental means, while insurer death was argues self-destruction.

A under an accident a double beneficiary indemnity policy, clause of a life has the burden of death *3 policy, proving was caused violent, external, and accidental means. When the evi by dence shows, here, as that an insured’s death was caused presented by violent and external a means, arises death was acci presumption dental. There also a However, suicide. both presumption against are rebuttable and be overcome “clear and satis presumptions evidence which excludes reasonable factory” con “any hypothesis sistent with death from natural or accidental causes.” and Casualty Life v. Daniel, 332, 209 Va. 163 S.E.2d 584 (1968). The issue, under the evidence here, turns the presented upon of the clause in the re meaning applicability policy excluding if death results from “self destruction covery or self inflicted injury, sane while or insane.” This is a first of question impression Virginia, and decisions in other are not harmonious. jurisdictions Plaintiff of consciousness the nature and conse argues physical the of act and an intention an insured to kill himself quences must be shown the before exclusion clause of self-destruction or self-in flicted insane, sane or can be invoked. relies on injury, She Christensen v. New Mut. England 197 Ga. 30 Co., Life S.E.2d (1944). 471 For other authorities supporting plaintiff’s argu ment see Annot., A.L.R.3d 1015, 1025-32 (1966), and the cases there collected.

In the Court of Christensen, of certified to the Appeals Georgia Court of that state the Supreme following question: If ‘Suicide. follows: as life insurance “Where policy provides own hand his die shall insane, whether sane insured, the lia- the of this from the date issue two act within policy, years the be limited shall this of the bility company less in- amount of the any in one sum paid, premiums payment face the for liable Is debtedness to company company.’ unless therefor be liable where it would amount of the policy, insured, where the above became provision applicable, quoted comes to date of the issue of within two from the policy, years a hotel window of sixth his death from story by jumping and one hotel roof of another on the forty-three landing part hallucination, reason an below, half when the feet insured, by realize enemies and did not to escape injury imaginary jumped his death?” as a natural act would produce consequence that, where Court answered the holding Supreme question nature and an insured did not realize consequences physical did not act, and not take his own his act life, intend thereby self-destruction, constitute while sane or insane within meaning so the exclusion clause of the rejected policy. holding Gogorza in De Knickerbocker reasoning dissent and followed the there. 65 N.Y. 232 (1875) Insurance However, a We think it dissent filed Christensen. strong of it here: appropriate portion quote “Therefore, is, where one under an hallu- laboring question cination and in order commits an act imaginary peril which to a sane his death, result in person naturally which to the insane mind would and did not the natural suggest but did in fact as a in his result natural consequences consequence death, he, does the contract as an insane tois provide person, be held accountable of his act natural *4 he were sane? We think that it else the of does, though provision the as to are effect, is without and the insanity floodgates left wide Thus, for fraud. . whether sane .. or the act insane, of volition, still the exercise and under the terms of the policy he is held accountable for his as act he were voluntary though sane.”

The numerical of the view that in order weight supports authority for an insurer to avoid the exclusion of death from self- liability destruction, insane, sane it is not the insured to necessary 212 form or to

realize nature of act or consequence physical would act of self-destruction conscious to take his life. If the purpose so would be it be as of a sane suicide in the case person, regarded the insured whether insured, treated as an insane of to regardless such act realized realizing capable cause intention his death whether he was entertaining capable v. rule are: to kill the cases Bigelow himself. this Among supporting v. Berkshire Ins. U.S. 284 (1876); Metropolitan 93 Co., Johnson Life & Ins. United States (3d 1968); Fidelity 404 F.2d 1202 Cir. Co., Life G. Co. v. 258 Aetna Ins. Co. (9th 1919); F. 897 Cir. Blum, Moore 1964); 101, 380 S.W.2d 9 A.L.R.3d 1005 (Tex. McLaughlin, v. Northwestern Mutual 192 78 N.E. 488 Mass. Life 9 (1906). (1966) See also 1032-40 Annot., A.L.R.3d § cases collected; there on Insurance at 673-674. (2d), Couch 40:42 In Aetna, said: supra,

“In our rule would lead confusion and opinion, minority define courts to attempts by varying degrees' aspects insanity. . . . The broader exclusion afforded exclusionary rule is in no . . obnoxious to . majority way public policy. [F]urther, and of most we think the construc- importance, tion clause in the its common gives light history, plain sense the words 380 S.W.2d at meaning employed.” A.L.R.3d at 1013-14.

In court said: Blum, supra,

“If the insured fell out of the window accident or in faint, fall, was killed there could course be a But récovery. he, motion, if of his own went the window and physical so himself, then under the contract, the insurer can avoid destroyed and it would matter not what the mental condition liability, insured was. The effect of the the instruction qualification quoted was a that, direction death resulted from although act of the window, suicide could physical going through found unless the deceased himself, intended to kill and knew his act would result in death. And this we hold was a material probably error.” 258 F. at 901.

We think the rule is the one better the numerical ma- adopted of the courts with the issue here. jority dealing presented case bar, court, at the trial fact, the trier of found that the accidental death and suicide were over- presumptions favoring against

213 fact are by The court’s supported evidence. come findings by caused not death was decedent’s evidence that clear and convincing self-inflicted self-destruction means, accidental by by not aberration, a mental although laboring con- in The trial to take his life. intend justified actually to order in that Atkinson, the evidence from cluding his restraints, left bed from the extricated himself peril, imaginary room, off, his stairwell, took down hall to went gown hospital went his own volition and radiator, and on the it by purposely placed lan- The caused his death. which window, plain through self- all comprehends purposeful exclusionary guage a sane from act emanate whether the suicidal shall destruction person it was Thus, one aberration. from mental necessary suffering to his and intend act that comprehend within the self-destruction take life order for death come his his exclusion. stated,

For the reasons the judgment

Affirmed. J., dissenting. Harrison, has failed accord the wife-beneficiary pre- death she is was shown that Atkinson’s to which entitled. It

sumptions was estab- caused and means. This been violent external having lished, was accidental arose that the decedent’s death presumptions and on sui- was not suicidal. The burden was the insurer to establish cide clear reason- and evidence to the exclusion any satisfactory able death. & 209 Daniel, accidental Casualty hypothesis Life Va. 163 S.E.2d 577 Harless v. Atlantic 186 (1968); Life Va. 44 S.E.2d 430 and (1947); Ins. Co. 173 v. Brockman, Va. S.E.2d (1939). 480 and under the delusion that hallucinating laboring and were doctors nurses from wife; him his trying keep seeing were him his various tubes in and they gassing body the air in his there were room; vents bugs crawling his bed. The decedent had never manifested suicidal previously any known tendencies had reason to commit entire suicide. The any thrust of conversations and Atkinson’s actions was of a man con- his cerned with and his self-protection self-preservation. freeing restraints himself he tore out the which been tubes had body his inserted in This accounts the trail of blood from the body. bed to the window. There were no to the accident, eyewitnesses to be- reasonable It is as there no evidence of how it occurred. his lieve air to rid that decedent was fresh system seeking he fell condition weakened imaginary gas, poisoned window, it is believe that “purposely” *6 trial The own “volition” went window. judge to take his found as fact intend “that not actually own life”. factual basis is that only assigned majority opinion Atkinson went testified it was his

“[d]ecedent’s physician on his own . . extracts window volition. .” The following from the do Yates, this Dr. Jr., Robert testimony physician, Harry not Dr. testified: Yates support premise.

“He was well, as far with getting along reasonably people do, this disorder until the to evening prior post-operatively when death, the nurses that he and was acting bizarrely reported as was described, he was and at was terrified hallucinating really these were to at him or the fact that he was things trying get that there was dreadful about to being gassed, something happen to him. Jf, # yr

x “This, to the toxic I think, made turn, [referring psychosis] him not ain normal and whatever this capable reacting way dread was that was after him, I think he was .thing doing darndest to from it. get away

^ ^ ^^ “The was the cause of his death. fall .y. *Jr .y. *n' Jt. TT

*.y. (cid:127)7T “Well, think, I to whether [as from the win- jumped dow of his own if I can it in I think be, what I volition] put may think he was He was not trying get away something. aware that he was on the he eighth Perhaps thought floor. on a ground and I will somewhere, climb out this win- floor dow, and it turned out the window was stories above the eight ground. -y. *7r J/. Tr .u. vr n jr

*j/. was not rational last time I “[H]e saw him. I don’t think he knew where he was. # # # # # true, “That is [that known not have may known he was on It floor.] eighth analogous me were threatening you that if someone say chasing you mountain, aof were knife, awith edge along you running see looked back to if you you, gaining you guy cliff, off the sure off the cliff—I am wanted ran jump you went off you anyway. -v. .y. TP w w TP he went out of I think “/ don't know whether he or not. jumped answer was. the window to whatever this [This given escape thing to the whether Mr. Atkinson jumped purposely response question in order to of an imaginary peril.]

Mj TP Jf, TP JL TP TP TP “It whether it was an irrational act. [responding question awas act on his his own volition.]” [Emphasis voluntary part supplied.]

In a referred to letter dated Dr. Yates [exhibit] January “an Atkinson’s death as unfortunate accident”.

An exhaustive examination of the in this case will not testimony show whether Atkinson fell of the or window out jumped or under window on the belief the was or escape imaginary perils, near The level. un- was ground attending physician speculated whether the decedent fell and this court is willing say jumped, in no better to make a such The one position judgment. thing was established with was that the was complete certainty not an insane did not intend to and was suicide, commit com- person, unaware of the he what pletely peril consequences doing. We should the same here that we have apply presumptions applied cases, that were in Schleunes Ameri- v. previous recently applied can Cas. Co. 528 F.2d 634, Reading, Pa., (5th 1976), Cir. where Circuit said: Judge Roney

“ ‘The suicide will stand and be decisive presumption against of the case until overcome which shall by testimony outweigh the presumption.’

[*] ^[*] # # # “Once evidence external, violent plaintiff presented showing death, under circumstances doubt, suicide in the state’s leaving pre- suicide to overcome the sumption against defendant required pre- suicide exclusion of sumption other by establishing every reasonable . . .” hypothesis. I in the Chris- would further add I the rule articulated regard tensen decision as the The “self-destruction sounder one. language self-inflicted while sane exclusions or insane”, similarly injury, a is The reason volume expressed, litigation. spawned great is It exclude both is not so language ambiguous. precise suicide which is and suicide which done under is attempted knowingly a state. delusionary holds: “The of the exclusion- majority opinion language plain all self-destruction whether the

ary comprehends purposeful suicidal act shall a emanate from sane one person suffering mental aberration.” the cases cited and relied Among 404 F.2d 1202 (3rd Metropolitan Johnson Cir. 1968). The there, court the clause “suicide while constructing sane or insane”, said: its face that all

“[O]n language plainly comprehends purposeful destruction, self whether the suicidal intent conduct shall em anate from sane mind or a one.” deranged Johnson, insured, beset with marital difficulties, and under order to wife, from his order, violated that went to stay away his home, fuel oil around a room and on his and set spread clothing fire to the and to his He left notes to his wife two clothing. premises^ written in which were at the found scene of his crayon lipstick, death. He died of burns. The court found there was no resulting evidence that did not know what and no alle- doing, Johnson or contention which could a reasonable gation conclusion support decedent was unaware of the fatal of his act. The court court. district upheld summary judgment Sig- it with “intentional” and nificantly, observed: equated “purposeful” “It follows that in the summary judgment improper present *8 case if the record only established a issue whether disputable of fact the insured, in his admitted to take derangement, attempting his life he when immolated himself. Of course a deranged person can believe he immortal, is or that fuel water, oil is or, some other basis, irrational his clothes with fuel oil and saturating a match will not kill Or him. his mental applying disorder lighted be so extreme that no has whatever comprehension what he is such doing. Any showing intentional de- negate self struction.” 404 F.2d at 1204. [Italics supplied.] word as in the key In the opinion, opinion, Johnson con- means designedly, “intentionally, “Purposely” “purposeful”. 1951). ed. 1400 (4th Law Black’s Dictionary sciously, knowingly”. defines (1966), New International Webster’s Third Dictionary aim; a definite determination; to mean “full guided “purposeful” described in Webster’s, “Volition” is not aimless p. meaningless”. exer- act of 2563, as “the act of deciding; willing choosing; evidence that will”. the court found cise of the While Johnson his act, fatal act was aware of the purposely a evidence Atkinson acted there is not scintilla intentionally, the con- The evidence is to designedly, consciously knowingly. delusion man, a We know that ill trary. only physically that his life was in was missed floor hospital eighth peril, received room and was found dead of thereafter injuries obviously from a fall. word Court, review, in the case under has in effect added the as a to the word in the “self-destruction”

“purposeful” prefix policy’s is to this I take If clause. It action that it be exclusionary the exception. intent of insurance where an insured company deny liability is killed or sustains as a result of or of suicide self-in- bodily injuries flicted or insane, while sane and whether such are injuries, injuries inflicted this should be stated in consciously intentionally, clearly its and under ex- policy. holding Applying majority, construed, as here could somnambulist recover clusionary for a self-inflicted received while Could injury walking sleep? sedated with under their influ- patient, hospital heavily drugs ence, who of bed and down the stairwell, recover? gets jumps And what would the status of inflicts who policyholder to himself while under the influence anesthesia or partially hyp- nosis?

I would reverse and enter final judgment appellant.