*1 TERM SPRING to her allegations of negligence against defendant-Smith. As however, noted her testimony adverse clearly is distinguishable in degree from that present Cogdill. Further- more, there was before the court at the time of the hearing on motion, Smith’s sufficient evidence a jury for find that to Smith was negligent, particularly in light plaintiff’s obvious uncertain- ty actually about what happened at the time of the accident.
Provided there is sufficient evidence presented trial liable, jury verdict finding defendant-Smith plaintiff entitled to submit her claim against him a jury. The grant of is, summary therefore, judgment in favor of defendant-Smith reversed.
Reversed as to both defendants.
Remanded to the Superior Court for trial. MOORE, MAXINE V. Moore, as Executrix of the Estate of Allan Pratt Individually MOORE, MAXINE V. v. UNION FIDELITY LIFE IN SURANCE COMPANY
76No. (Filed 1979) 12 June covering Insurance 67— bodily injury” action on “accidental —showing unexplained, presumption violent death external means — accident When in an action to recover death benefits under a in- suring against bodily injury” loss of life due to “accidental makes unexplained, wholly violent death external means which is not inconsistent arises that the means were accidental and the (1) following apply: place rules the effect of this defendant (2) evidence; the burden of forward with if there is no evidence non-accidental, to show peremptorily that death was should be in- means, unexplained, structed if it finds violent death external (3) accidental; should find the death was if evidence of non-accidental presented, presumption per death is longer applies, then the se no and the jury, of accidental death is permissible one for the but it is still infer from the circumstances that the death was and it (4) instruct; proper judge for the to so in no event does the operate persuasion to relieve the of the burden of on the issue of ac- cidental death. IN THE SUPREME COURT *2 policy —sufficiency showing § of unex- 2. 67.2— action accident Insurance by plained, means violent death external insuring plaintiffs policy benefits under a In an action to recover death bodily injury,” plaintiff’s against loss due to “accidental husband of life by unexplained, external was sufficient to show an violent death wholly plaintiff was means and entitled to not inconsistent it tended show that means were where plaintiff’s gunshot a and a husband was dead with wound his head side; just eye, by gunshot right was and it was his wound over burns; by powder signs struggle a there or that surrounded anyone and were no around, evidence, while a else had been since this sufficient to suicide, wholly discharge was not inconsistent with accidental verdict of pistol.- policy permissible 3. 67.2— action accident inference of suicide or — plaintiff against directed accident —no verdict plain- benefits which insured In an action to recover death under tiff’s, bodily injury” against and which husband loss of life due “accidental suicide, coverage by directing in for the trial court erred a ver- excluded conclusively plaintiff’s against dict where evidence did not establish by permit died but would an inference of acci- her husband suicide also by unexplained, means. dent her of an violent death external from participate Justices Beitt and did or deci- the consideration Brock sion of this case. Copeland dissenting. Justice 7A-30(2) to G.S. from a decision appeals pursuant
DEFENDANT Robert Martin with Appeals, Judge opinion Court Justice, and Clark Judge now Brock Judge, concurring Chief reversing directed verdict in its favor dissenting, granted the 13 1976 Session Judge September FORSYTH Clifford App. District The below was at 35 N.C. reported Court. decision 69, 239 No. 52 argued S.E. 2d The case docketed at the Term 1978. Spring Keith, Keith, J. Attorneys Moore & Thomas for
appellee. Petree, Robinson, Hudson, Stockton, H. Stockton & James Jr., Wilson, Attorneys Kelly, Gray appellant. defendant EXUM, Justice.
This is an action for death benefits under a issued husband due to insuring plaintiff’s defendant loss life against SPRING TERM bodily “accidental trial injury.” granted court defendant’s mo- for a tion directed verdict at the of all close the evidence. The Court of held that was Appeals error to against direct verdict second, plaintiff and ordered new trial. On the issue raised on appeal, Appeals upheld Court of trial ruling court’s sum principal $5000. under the payable policy was We affirm in both respects. husband,
Plaintiff’s evidence showed that her deceased Allan Moore, Pratt was a retired truck driver. He together wife income, sufficient and he had particular no financial wor- He ries. had been hospitalized mental institutions at least three *3 times, the last time as an a period for outpatient approximately June, month and half in beginning Mrs. Moore testified state, that her husband would on get occasion into “manic” being “keyed characterized his in up,” buy- excessive engaging not, however, and and ing selling never He did resting. appear moody “depressive gloomy.” or or Mr. was Moore on medication — — Lithium and coumadin his after last hospitalization. Mr. left morning Friday, Moore home on the 14 September Hillsville, to go to Virginia, arrange an auction sale. His death apparently body occurred that His night. was found the next He was in front his car morning. lying just off an unpaved road or on a path farm he owned near Hillsville. The cause of his forehead, gunshot death was a wound just over his right eye. were powder There burns Mr. surrounding wound. clothing Moore’s was not disturbed. There signs were no of a anyone struggle or that else been near around. At or his a .32 right foot was caliber He was pistol. proficient with firearms usually and gun, carried a Mrs. although Moore did recognize gun side. found his
Defendant’s evidence in agreed most essential respects plaintiff’s, keys but it in showed addition that the to Mr. Moore’s car were in still ignition that on his person, among watch, $92.24 were his his things, his wallet and ring, Bolt, defendant, E. cash. Edwin testifying for stated that he recognized found at the scene as to Mr. belonging Early Moore. Dr. H. Joseph estimated time of as 10:00 p.m. September 1973. He also stated that in his opinion the “weapon was within two skull” when was inches fired. THE IN SUPREME .COURT
Moore v. Insurance (cid:127) death, against Mr. was insured Moore At the time of all directly other causes “resulting independently by defendant.' bodily injury” policy under a issued accidental from “by is death caused coverage policy under Excepted from (sane insane).” Plaintiff filed a any thereat attempt suicide or $10,000 alleges with what she are accordance claim to collect she payment, After defendant refused policy. the terms of the her hus- capacity action both in her executrix of brought this beneficiary con- policy. and as under Defendant band’s estate it is Mr. died as a result of suicide and tends that event, any defendant policy. not liable under the consequently $5000. liability for a sum in excess of denies trial, the court ruled At close of plaintiff’s was $5000. under the At the payable that the sum principal time, on defendant’s motion for ruling same reserved court then renewed presented directed verdict. Defendant motion, granted. which was its
Plaintiff here had the burden of
her husband
bodily injury
of accidental
within the
meaning
died as
result
Co., 271
Barnes v. Insurance
issued
defendant.
available
The effect entirely of this has not been due no small part difficulties inherent in use word itself. As “presumption” recently Justice Britt summarized the Osteen, 113, 117, problem in Henderson Co. v. 254 S.E. (1979): is a “Presumption loosely term which is often used. It encompasses concept modern of an inference where the basic ... fact is said to be facie prima evidence of the fact to be ... inferred. It also of a encompasses modern true concept where presumed fact must found to be exist unless sufficient evidence of the nonexistence of the basic fact is produced or unless presumed fact is itself disproven.” This (or difference between facie prima facie case as prima called) is often and true further in 2 explained (Brandis Stansbury’s North Carolina Evidence 172-73 rev. 1973) (hereinafter Stansbury): case’ ‘prima ‘prima facie facie’ evidence means evi-
“[A] dence sufficient to
go of a fact to be it; proved. There is compulsory jury may nothing about disbelieve the evidence or believe the evidence presented, necessary but decline draw the inferences to a finding *5 fact, the or ultimate believe the draw the evidence and nec- however, essary In inferences. the case of a al- presumption, jury may though still disbelieve the evidence thus fact, fail find to the existence of the basic it be should told that if it finds fact the basic it must also find the presumed 380 v. Insurance Co.
fact, its suffi- produced unless evidence of nonexistence presumption. cient to rebut the sharply and a differ facie case prima [A] A prima of evidence. upon producing their effect burden but does the burden of the discharges proponent, facie case adversary. A presumption, not shift however, the burden to burden but only discharges proponent’s n producing the other the burden upon party also throws does not exist. If no such evidence that the presumed fact if the evidence is insuffi- produced, proffered evidence is party against whom the purpose, presump- cient for that an subject ruling will be adverse operates tion find in fact presumed favor of the judge, directing (Em- to have been established.” if the basic fact added.) phasis case law has discussed the effect of the To extent our violent death is unexplained, that an it is a “true” Warren supports presumption.2 the conclusion that indemnity under Company a suit double clause $2500 payment life insurance which policy, provided above the face when the insured’s death amount “external, bodily injury caused violent ac- resulted from cidental means.”3 No benefits were be recovered under this bodily injuries if inten- provision death resulted from “inflicted tionally by The evidence in the showed person.” another case Tate, shot.by Willie attempted deceased one who then was. The issue companion. assault deceased’s female of contention be- intentionally parties tween the was whether Tate had shot de- accidentally ceased or had shot him course assault on his companion. discussing the effect of the of accidental burdens of persuasion
death on the allocation evidence, Justice, Justice, forward with later Chief Devin said, 404, 2 215 at S.E. 2d at 18: N.C. merely 495. (Emphasis added.) 2. In our most recent case in which this noted that “at least made out presumption applied, prima facie case Barnes v. Insurance of accident.” [271] N.C. at [155] S.E. Court 2d S.E. 293 (1937). 13 S.E. Warren (1941); case came to 705, 9 S.E. Court 2d four times. The (1940); N.C. opinions in the case S.E. 2d 17 may (1939); be found at and 212 N.C. N.C. *6 SPRING TERM distinction,
“There is a
with respect
to the burden of
between
proof,
the rule applicable to actions upon ordinary
life insurance policies containing exceptions,
proof
where
policy and death of insured imposes
the insurer
upon
burden of sustaining the pleaded
exception,
the rule ap-
plicable where the insurance
by
is against death
accident or
accidental means. In the latter case well considered authori-
ties in this and
jurisdictions
the view' that
shown,
where unexplained
violence is
the defendant
liability
who seeks to avoid
on the ground that
the death
bodily
resulted from
injuries
intentionally
inflicted
another
has the
person,
burden
going
with evi-
forward
dence—that is that
evidence of death
external violence is
sufficient to take the case
to the —but that the burden
of the issue
of death
accidental means still remains upon
added.)4
the plaintiff.” (Emphasis
case, Justice,
In a subsequent
opinion
the Warren
later Chief
Barnhill,
Justice
ed,
agreed with the language used earlier and add-
“[W]here else nothing appearing, presumed that the death resulted from When, however, accidental means. there is evidence tending death, explain cause of it becomes a question of fact for the determination jury.” of the When read together, the quoted language from Warren (1) cases makes these points: when plaintiff makes a showing of violent, unexplained death the burden of going forward with (2) defendant; evidence shifts to if there no evidence forthcom- fact, ie., ing to rebut the presumed that death was (3) it; if, however, there is no question evidence is in- fact, troduced rebut presumed a jury (4) presented; and the burden of persuasion on the issue of ac- cidental death never shifts from plaintiff. This is classic descrip- tion operation of a “true” presumption. Stansbury, See the burden of surer must latter evidence. 4. Although the course, See prove going Slaughter it has the burden of an exclusion from forward with the evidence as a result language v. Insurance Justice Devin used is coverage persuasion if it seeks to avoid on the susceptible issue, 108 S.E. liability to both effect of merely interpretations, on that the burden of presumption, ground. If insurer follows the we read it to not because the in- forward impose Moore v. Insurance *7 moreover, are, reasons of for public There sound and treating presump- cases this accident doubtful presuming has its basis in the presumption The presumption. tion as true day Men women every generally life. and common experience wish) constantly as we conform their con- might as (although not is, the involved of law. When requirements question duct to the case, by may whether death was accident or often be the suicide, of life is in favor of “the love presuming-accident there death, the fact self-preservation, and the fear of the instinct contrary the general is conduct self-destruction mankind, immorality one’s own life the taking Ins. Co. v. Casualty of crime.” presumption of innocence Life 335, Daniel, 2d 580. Added to this Va. at S.E. at supra, is fact it serves sense basis for presumption common “a which inclines in case of doubt toward the fruition social family through for plans protection rather than the frustration of 1972). (2d ed. insurance.” McCormick on Evidence at Co., And, v. supra, Barnhill noted in Warren Insurance as Justice important reason perhaps most indulgence for is to avoid the speculation death. cases of violent unexplained, plained, violent death
[1] In summary, when external means, makes a “which is wholly of unex in accident, arises that the means consistent with Barnes 271 N.C. at were accidental.” 2d place S.E. The effect of this is to forward evidence on If there is burden of defendant. no to show that death was non-accidental then an be instructed that if it finds peremptorily should means, also find death external it unexplained, violent should evidence, was If that the death accidental. of non-accidental se presumption per longer applies, then the no presented, however, is, jury. accidental death one for the It question of circumstances that still for the to infer from the permissible in to so proper judge the death was and it Clemmer, 79 F. Standard Ins. Co. struct. Jefferson Life (4th 1935). Finally, 730-31 in no event the presumption does Cir. on the persuasion of the burden of operáte relieve issue of accidental death. SPRING TERM 1979 (cid:127) here, these rules the first we must applying
[2] answer is whether plaintiffs unexplained, evidence showed an wholly violent external means not inconsistent with acci Although question, dent. this is close we think it did. Plain tiffs husband was found dead with a gunshot wound his head eye,- and a his side. wound just the right over and was it surrounded powder burns. There were no signs of anyone or that struggle else been around. While suicide, certainly would have supported verdict of is not whol ly inconsistent with accidental discharge of the Plaintiff pistol.5 was therefore entitled to the benefit the presumption. *8 Co., Defendant cites v. Slaughter supra, Insurance 250 N.C.
265, 438, 108 S.E. 2d in its contention that not entitled to the presumption. Slaughter was a on a policy suit insuring against death “resulting directly and all independently of bodily causes from injury solely sustained the insured external, 266, through violent and Id. accidental means.” S.E. 2d at 439. Excluded coverage from was death caused any intentional act of the insured other person. Selma,
Decedent in Slaughter, a taxicab driver in
had been
seen
leaving town to take
passenger
Several
Smithfield.
later,
hours
he was found dead in a garbage
about
dump
three
miles from Smithfield. He had been
in
shot
the back and above
ear
a pistol.
money
left
His
habitually
he
Dunn,,
carried were
His
gone.
taxicab was found in
some 22 miles
evidence,
away. Upon consideration of all this
this Court conclud-
ed,
269,
id. at
108 S.E.
441:
2d at
“In this case
plaintiffs
own evidence showed an in-
tentional killing. That showing established lack of coverage.
It showed
a bar
also
under the exclusion clause. Either was
cause,
fatal to plaintiffs
requiring nonsuit.”
While the
Slaughter
decision in
was proper
second
stated,
ground
it was
say
incorrect
that plaintiff’s evidence
a lack
showed
As was
in
coverage.
said
Fallins
Co.,
72, 75,
(1957),
100 S.E. 2d
“Injuries
caused
See
Defendant
also
other.
jurisdictions
plaintiff
in which a verdict was directed
against
or,
least,
a
Whether
is
at
inference of
as well
permissible
entitled to
necessarily
made
defense as a matter of law must
be determined at
whether
has
out
affirmative
has
evidence. If
at least
to the inference and
not made
plaintiff's
point plaintiff
close of
entitled
notwithstanding
go
defense,
proper
case must
to the
under
instructions
out an affirmative
against
strength
the inference or in
of the defense. Whether defendant
of defendant's evidence either
strength
a
would
oí
its evidence be entitled
instruction is
peremptory
ques-
insurer
ever because
tion we need not answer here and leave
for future determination.
open
SPRING TERM 1979
v.
Insurance Co.
facts similar to but not
like
precisely
those
Hinds v.
here.
John
Co.,
(1959);
Hancock Mutual
Ins.
155 Me.
reasonableness of drawing the inference of accident from a show- ing of an unexplained, violent death external means against was, the inferences of suicide arising from the evidence. It therefore, error to against direct verdict plaintiff.
We have examined the insurance light of plaintiffs $10,000 contention that it provided coverage. While the policy drawn, could have carefully been more we do not see how plain- tiff’s decedent could reasonably have the prin- understood cipal payable sum in the event of accidental death in the manner $5000. described herein was other than The decision of the Appeals Court of Affirmed. BRITT and BROCK did
Justices participate the con- or sideration decision of this case.
Justice dissenting. Copeland
No can dispute one the law presumptions is regarding riddled with As majority correctly confusion. opinion points out, a logical loosely often inference a “presumption termed fact,” yet that and a “true” concept presumption, “presump- *10 law,” tion of theory are different and in practical application. This Court has noted “a presumption of fact used in the evidence, sense of an inference is a deduction from the having its origin in the well relation recognized between certain facts in v. Insurance Co. Will In re proven.” to be ultimate and the
evidence (1943). 595, 728, Wall, an in- Such S.E. 223 N.C. a fact or cir- merely as an evidential is “to be considered ference cumstance, a impose which as a would presumption rather than 595, 275 Id. at on the defendant.” producing burden evidence] [of with a in this case dealing 731. we are 2d at It is clear that S.E. merely as a presump- to referred presumption “true” [hereinafter tion]. to which one presumptions, view of majority
The
subscribes,
theory, which
“bursting
is
bubble”
North Carolina
terms,
. . .
a
although
presumption
practical
means
“[i]n
permit
a motion
relying
it to survive
party
upon
available
case,
other value
at the close
it has no
verdict
for directed
1972). (Em-
(2d
Evidence
ed.
McCormick on
in the trial.”
§
added.)
sufficiently rebut-
has been
Once
phasis
ted,
In re
generally
from the case. See
disappears
it completely
Therefore,
Wall,
in-
defendant in this case
Will
when the
supra.
death was
to show that the insured’s
troduced evidence
accident,
its re-
rule on
required
the trial court
not an
all the
a directed verdict at
the close of
motion for
newed
opponent
never existed. “The
as if
evidence
verdict,
entitled to a directed
may still not be
denied,
ruling
nothing
will have
to do
but if his motion
Evidence, supra
McCormick
presumption.”
the existence
in this
gave
plaintiff
majority opinion apparently
The
the defendant to
requiring
of a true presumption,
case the benefit
and the
rebutting
forward with
come
case,
jury
entitling
get
her to
prima
facie
benefit of
by suicide. This
not
the evidence
regardless of
“unless it
goes
ap-
case
the law. North Carolina
law,
recovery
cannot be had
as matter of
pears,
reasonably
any view of the facts which the
upon
Gas
Graham v. North Carolina Butane
establish.”
tends to
added.)
58 S.E. 2d
(Emphasis
Permastone, Inc.,
666, Manganello
also
See
(1976).Thus,
situation, a
make a case
in this
trial court must
the evidence would
by case determination to see whether
to the
get
for the
does
plaintiff.
a verdict
evidence that does not con-
and the defendant’s
right,
a matter of
*11
TERM 1979
SPRING
Insurance Co.
of the flict
is to
be considered
the court.
See,
e.g.,
Frye,
Blanton
Of course there
be cases dealing with this issue in which
the facts and circumstances indicate a reasonable
possibility
situation,
the death of the insured
anwas
accident. In this
as in
case,
any other
would be
have the
entitled to
decide the cause of death. In Gorham v. Mutual
&
Health
Benefit
(4th
Omaha,
1940),
Accident Association
“A
any
suicide case should be tried like
metaphysical
about
reasoning
and burden of
presumptions
issue,
should
proof
permitted
not be
to obscure the
real
many
has
been done
so
cases. If the evidence is conflicting,
it,
or if
reasonably
different
inferences can
be drawn from
If, however,
is for the jury.
case
the evidence is so clear
is,
as to leave no room to doubt what the fact
law,
duty
one of
is the right
and the
judge
Annot.,
direct
verdict.” Id. at 100. See also
September day of his he made a point telling his wife daughter that he loved them. early The insured was found dead in the morning of
September in front of his car on a road near his farm in A .32 Virginia. caliber belonging revolver to the insured was deceased, ground on the next to the which had five unfired shells and one spent cylinder. shell in the Fairclóth
State v. *12 wound,- and burns around the “heavy” powder 4. were There two was within gun opinion in his Early Dr. testified skull when fired. inches of the a usually he carried guns,
5. owned several The insured gun, with firearms.” proficient he “was testified that and his widow found, car were in keys to the insured’s 6. When he $91.00 a pocket was in containing his wallet ignition, pants. anyone had else struggle a sign 7. There was no been there. p.m. 10:00 death to be Early the time of
8. Dr. estimated 1973. September facts, defend- correctly granted the trial court Under these evidence. at the close of all the a directed verdict motion for ant’s reason, to reverse the I dissent vote respectfully For this judgment and to reinstate the of Appeals decision of the Court the trial court. FAIRCLOTH NORTH CAROLINA GREGORY
STATE OF 25No. (Filed 1979) 12 June opinion expression to witness —no 99.4— court’s remark 1. Criminal Law witness, by telling who express opinion did The trial court not pried had been screen of the victim’s house improperly testified that a window any object, draw conclusions but that the witness could not out with some marks, say was not an ex- he tool since the court’s instruction saw could pression any question or an ex- opinion of fact to be decided simply proved had been but instead pression opinion to whether fact saw, leaving testimony what he statement of limited the witness’s draw its own conclusion. degree burglary Breakings § 7— included Burglary first and Unlawful —lesser required offenses —instruction not burglary, did err in degree the trial court prosecution for first breaking and of non-felonious failing charge lesser included offense on the that defendant committed entering evidence tended to show where the State’s dwelling entering occupied removing breaking a bathroom screen