12447 | S.C. | May 11, 1928
Lead Opinion
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *43 May 11, 1928. The opinion of the Court was delivered by The judgment of the County Court for Orangeburg County is affirmed for the reasons stated in the decree of his Honor, Judge Moss.
MR. CHIEF JUSTICE WATTS and MESSRS. JUSTICES BLEASE and CARTER concur.
Dissenting Opinion
This is an action upon an insurance policy, issued by the defendant to the plaintiff, on March 24, 1924, indemnifying him (in the sum of $500 for the first month, and increasing at the rate of $50 per month until the maximum sum of $750 is attained) "* * * against death or disability resulting directly, and exclusively of all other causes, from bodily injury sustained solely through external, violent, and accidental means, * * * and against death and disability from any bodily disease or illness." As the complaint alleges, the policy "provided indemnity therein for loss of time caused by accidentalmeans, and for loss of time caused by illness" — a construction of the policy which I think is entirely correct. *51
The policy contains separate and distinct provisions gauging the indemnity for a disability resulting from accidentalcauses, and the indemnity for a disability resulting from disease or illness.
Paragraph C. For a disability resulting from accidentalcauses, which wholly and continuously should "disable and prevent the insured from performing any and every duty pertaining to any business or occupation" (under the heading "Total Loss of Time"), the indemnity is fixed at $50 per month for the period during which the disability may continue.
Paragraph D. For a disability resulting from accidentalcauses, which wholly and continuously should "disable and prevent the insured from performing one or more important daily duties pertaining to his occupation, or in the event of like disability immediately following total loss of time" (under the heading, "Partial Loss of Time"), the indemnity is fixed at $25 per month, not exceeding 6 consecutive months.
Both indemnities, of course, are limited to the amount fixed in the policy.
Paragraph F. For a disability resulting from disease orillness, "during which the insured shall be necessarily and continuously confined to the house, and therein regularly visited by a legally qualified physician, and wholly disabled and prevented by bodily disease or illness, from performing any and every duty pertaining to any business or occupation" (under the heading, "Health Insurance, Total Loss of Time"), the indemnity is fixed at $50 per month, for a period not exceeding 6 months.
Paragraph G. "Or for a period not exceeding 2 consecutive months of convalescence, immediately following such confinement in the house, or by reason of any nonconfining illness, during which the insured shall be regularly attended by such physician, and wholly disabled and prevented from performing any and every duty pertaining to any business *52 or occupation" (under the heading, "Health Insurance, Partial Loss of Time"), the indemnity is fixed at $25 per month, for a period not exceeding 2 months.
It is thus clear that the policy provides indemnity for a disability resulting from accidental causes, and a disability resulting from disease or illness, and total and partial disability in each case.
The evidence tends to show that on the night of November 12, 1926, 2 years and 8 months after the policy became effective, the plaintiff was alone in his home. In the early part of the night someone came up into his yard and shouted, "Hello"; the plaintiff called to know who it was; the intruder gave the name of the plaintiff's son-in-law, and was let into the house by the plaintiff; as soon as he entered, the man (who was not the son-in-law, and does not appear to have been identified), exclaimed "Give up, I am going to kill you tonight." He attacked the plaintiff, beating him over the head with a pistol, knocked him down, shot him, and after a scuffle with the plaintiff, in the darkness, escaped. The plaintiff was carried to the hospital, operated upon, detained there about three weeks, and treated "off and on" by the physician for several weeks thereafter.
The plaintiff filed a claim under the policy for $203.75, which was declined, and this action was instituted for $500.
The defendant set up several defenses, none of which I deem it necessary to consider except that under the following provision of the policy:
"In the event of death, loss of limb or sight, or disabilitycaused by injuries intentionally inflicted upon the insured byhimself or any other person. * * * the company shall paybut one-tenth the amount otherwise payable for such injuries."
The case was submitted for trial to his Honor Judge Moss of the County Court, without a jury. On August 17, 1927, he filed a decree rendering judgment in favor of *53 the plaintiff for $406.25, from which the defendant has appealed upon several exceptions; the only one which will be considered is the contention under the defense above stated, that the plaintiff is entitled only to 10 per cent. of the amount otherwise recoverable, as provided in the paragraph of the policy above quoted, in the event that the disability resulted from "injuries intentionally inflicted upon the insured by * * * any other person."
It appears that the defendant admits its liability to the plaintiff in the sum of $109.10; whether it is entitled to more than this depends upon the construction which his Honor, the trial Judge, placed upon the paragraph in the policy above referred to and his conclusions from the evidence.
His Honor, the trial Judge, I think, very properly declared the law, which appears to be well established, and as to which there does not appear to be any controversy between the parties, that where the insured is intentionally injured by another and the injury is not the result of misconduct or an assault by the insured, but is unforeseen in sofar as he is concerned, the injury is accidental within the meaning of accident policies. Annotation in 20 A.L.R., 1123, citing and digesting an array of decided cases.
He was also entirely correct in holding that where the company defends upon the ground that the injury came within the exception, that is to say, that is was intentionally inflicted upon the insured by "any other person," the burden is upon the company to bring the case within the exception. In other words, the plaintiff makes out a prima facie case by proving that the policy was in force at the time and that he suffered an injury. The defendant then assumes the burden of proving that it was inflicted intentionally by another person.
The real question in the case, then, is whether no other reasonable inference can be drawn from the evidence, than that the injury was intentionally inflicted by another. *54
This is a law case, tried by a Judge without a jury. His findings of fact have the same force and effect as the verdict of a jury; and unless he has committed some error of law, leading him to an erroneous conclusion, or unless the evidence is reasonably susceptible of the opposite conclusion only (which presents a question of law), the judgment must stand, however erroneous it may appear to this Court to have been.
I do not think it is fair to say that the evidence presents a prima facie case of unintentional injury. It simply presents a case of injury, with a prima facie liability of the defendant under the policy, to break down which the defendant assumes the burden of showing an intentional injury; and in a law case that showing must be so strong as would justify the Judge, upon a trial by jury, in directing a verdict for the defendant.
But assuming that the evidence presents a prima facie case of unintentional injury, I think that the authorities are conclusive upon the proposition that that is only a presumption, rebuttable by opposing evidence, which may be so conclusive as to completely destroy the presumption.
"When no reasonable man could fail to come to the conclusion that the presumption had been so destroyed, * * * then it would not only be within the power of the Court, but its duty, to order a nonsuit, or direct a verdict for the defendant."Baker v. Tel. Co.,
See, also, Joyner v. South Carolina R. Co.,
Now, with the principle in view, let us examine the evidence. There was no eyewitness to the unwarranted intrusion and attack of the villain except the plaintiff, and his account of them is all that there is. It is substantially as follows:
The plaintiff lived alone; in the early part of the night he was in his home, not having retired; he was attracted by the call of someone coming up into his yard; he answered the call with an inquiry as to the identity of the caller, and was told that he was his son-in-law, which was untrue and evidently assumed to insure admittance; the plaintiff opened his door, and with a scant invitation the intruder was admitted; he announced his intention to kill the plaintiff and immediately attacked him, beating him over the head with a pistol, knocking him down, and shooting him while he wasdown; although battered and bleeding and shot, a tussle ensued and the intruder was ejected or voluntarily withdrew.
This is the evidence from which it is proposed to be decided that it presented the issue of intentional injury so doubtfully as to require a submission of it to a jury, if a jury trial had then been in progress.
His Honor, the trial Judge, held, as a matter of fact, that the evidence showed that the pistol wound, which was the more serious injury, was caused by the accidental discharge of the pistol in the scuffle between the insured and the intruder. I do not think that there is a trace of evidence to sustain this conclusion. The plaintiff's testimony is to the effect that the scuffle in which the pistol is supposed to have been accidentally discharged, did not take place until afterthe plaintiff had been threatened with death, beaten over thehead with the pistol, knocked down, and shot. *56
I quote his testimony on this point from the record:
"Q. Did he attack you? A. Knocked me down.
"Q. What else did he do to you? A. Shot me. * * *
"Q. Which one did he do first? A. Knocked me down first; that is my conviction.
"Q. It is your conviction that he knocked you down first? A. Yes, sir."
It was impossible, therefore, for the pistol to have been discharged in the scuffle, for none had taken place.
Furthermore, the plaintiff was asked:
"Q. Did you hear the report of his pistol? A. Yes, sir.
"Q. Where did you hear that? A. When I was on thefloor, he was beating me in the head with something —" — that after that, he got up from the floor and succeeded, by tussling, in ejecting the intruder from the house. The onlytime that a scuffle was had was after the plaintiff had beenknocked down and shot.
His Honor advances two theories, which, to my mind, are quite inconsistent:
(1) That the intruder, as shown by his declaration, "Give up, I am going to kill you tonight," intended to kill the plaintiff, and that as his purpose to kill was not accomplished, although he beat the plaintiff over the head with his pistol, knocked him down, and then shot him, he cannot be said to have intended these minor injuries, tokens of his affection.
(2) That the intruder did not intend to kill the plaintiff, for the reason that he would have shot him as he first entered the room, and therefore could not and did not intend to shoot; that consequently the shooting was accidental and not intentional. As a matter of fact, from the plaintiff's testimony, little time seems to have elapsed, after entering the room, during the unintentional and playful intentions of the intruder. *57
And then follows this remarkable logic:
"Although the assailant declared that he had come to kill plaintiff, the purpose must have been to knock him unconsciousand then rob him, as there was no ill will or bad blood or difficulties which would lead to a fatal attack. If the intention were to rob, then the blow on the head and pistol shot wound would have to be held incidental and accidental."
I cannot follow the learned Judge. If the purpose of the intruder was to knock the plaintiff unconscious and then rob him, how is it possible for the blow on the head, howeverincidental to the plan of robbery, to have been accidental?
Quite a number of cases hold that when the attack of the third person has resulted in death, before the company can be absolved upon the theory of an intentional injury, it must appear that death was intended by the assailant. This principle, as I understand, is confined to cases like Utter v. InsuranceCo.,
That, however, is not the case here; it seems too absurd to hold that if a man intends to kill and fails in his purpose but seriously wounds, he must be absolved from an intention to seriously wound, which is apparent, because he intended to kill and not wound.
It is clear to me that the plaintiff was not entitled to indemnity for both a disability resulting from an injury and an illness resulting from the same thing.
I think that the judgment should be reversed and that a new trial be granted unless the plaintiff shall, within 10 days after the remittitur shall have been filed, remit all of the *58 judgment in excess of $109.10, with interest from August 17, 1927; in that event, that the judgment for that amount stand.
Dissenting Opinion
The only question raised by the petition is whether the plaintiff was entitled to indemnity on account of both injury and illness, which was allowed by the decree of his Honor the County Judge. There is no contention but that the illness, for which indemnity was allowed, was the result of the injury for which indemnity also was allowed. For the injury indemnity to the amount of $269 was allowed; and for the consequent illness, $137.25.
As I endeavored to show in my dissenting opinion, there does not appear to be any doubt but that the policy provides indemnity for a disability resulting from accidental causes and a disability resulting from disease or illness. If the disease or illness was separate and distinct from the injury caused by the accident, indemnity upon both accounts could be collected; but where the illness resulted from the accident, I think that it is clear that to allow indemnity for the injury, which necessarily included the consequent illness, and to allow the indemnity for the illness would present a case of double indemnity for the same disability — a duplication.
It is suggested that the exceptions do not bring the question properly for review by this Court. They are not as specific as they might have been, but in so plain a case of error I do not think that this Court should be hypercritical *59 in order to sustain the judgment. It is not too great a strain to hold that the question may be considered under the fifth exception:
"Because the Court erred in deciding that the plaintiff was entitled to recover any amount under the policy, either for sickness, disability, injury, accident, or hospital benefits."
I am greatly dissatisfied with this decision and think, atthe very least, that the judgment of this Court should require a remission by the plaintiff of $137.25 of the judgment or submit to a new trial.
Addendum
As the question presented by the petition for rehearing was not properly raised by any exception on appeal, it will not be considered.
Petition dismissed.
MR. CHIEF JUSTICE WATTS and MESSRS. JUSTICES BLEASE, STABLER and CARTER concur.