Davis v. Colonial Life & Accident Insurance

VAUGHN, Judge. We note at the outset that there are no exceptions to the court’s findings of fact. The facts so found are sufficient to support the conclusion that the insured’s death was accidental within the meaning of the policy, i.e. it resulted from an unexplained gunshot wound. Defendant’s assignment of error directed to the court’s failure to grant its motions for dismissal, “judgment notwith [49] standing the verdict,” a new trial and its exceptions to the entry of the judgment do not present the question of the sufficiency of the evidence to support the findings of fact made by the court. Defendant brings forward an assignment of error based on the judge’s ruling on the competency of the child as a witness. The trial judge was wrong when he said that the child could not testify because of his lack of understanding of “divine punishment.” It clearly appears that the child expressed an understanding of his duty to tell the truth. He told the judge that if he did not tell the truth he expected to be punished by his mother, the court and by God. If he lacks understanding of the precise nature of the punishment to be expected from the latter, it is, perhaps, a dilemma shared by many who are much older than he is. Moreover, it is highly questionable whether a disqualification as a witness because of either lack of understanding of, or disbelief in divine punishment could, in proper case, withstand an attack on constitutional grounds. The question now is whether the error prejudicially affected the outcome of the trial. The judge tried the case without a jury. He heard the child’s testimony and it is in the record. He referred to the testimony in the judgment and makes, what might be called, alternative findings which are, in part, as follows : “The infant’s testimony seems to establish that the insured had quit the assault on his wife, the infant’s mother, when the bedroom light came on and was Walking toward the infant. The evidence does not disclose for what reason the father did so. It would appear to be fair inference that the father intended to remove the dangerous weapon from the possession of the youth who was untrained in the use of firearms for the protection of the youth, his mother, or himself. It would not appear under any circumstances that the father expected the child to shoot him.” The quoted alternative finding explains the “unexplained gunshot wound” and discloses that it was the result of the intentional act of another. That the death wound on deceased was inflicted by the intentional act of another, standing alone, does not bar recovery under the terms of the policy before us. The policy does not have a clause excluding injury by the intentional act of another. Bone v. Insurance Co., 10 N.C. App. 393, 179 S.E. 2d 171. [50] The judgment before us includes the following: “ ‘In policies . . . calling for construction of insurance coverage case of death by ‘external . . . and accidental means’ . . . the true test of liability ... is whether the insured, being in the wrong, was the aggressor, under such circumstances that would render a homicide likely as a result of his own misconduct.’ Clay v. Insurance Co., 174 N.C. 642. And in Fallins v. Insurance Co., 247 N.C. 72, p. 75, the Court said, ‘an injury is effected by accidental means if in the line of proximate cause the act, event or condition from the standpoint of the insured person is unintended, unexpected, unusual, or unknown, the unintended acts of the insured are deemed accidental. Injuries caused to the insured by the acts of another person without the consent of the insured are held due to accidental means unless the injurious acts are provoked and should have been expected by the insured.’ ” Clay v. Insurance Co., supra, quoted in part by the trial judge, is cited as supporting the following: “Despite some variety in the language used, the general rule is to the effect that the mere fact that a person insured against accidental injury or death voluntarily and wrongfully assaulted another will not be sufficient to characterize as nonaccidental all possible injuries which he receives in the course of or as a consequence of his attack, but such injuries may be regarded as accidental unless they were a natural or probable result of the insured’s actions, reasonably foreseeable by him or by a reasonably prudent man in his position.” 44 Am. Jur. 2d Insurance, § 1248, p. 93, n. 10. As here, Aetna Life Ins. Co. v. Beasley, 272 Ala. 153, 130 So. 2d 178, involved a bedroom assault by a husband on his wife. The father was shot and killed by his 14-year-old son. The Alabama court affirmed recovery under a policy that provided benefits for loss of life sustained solely by accidental means. For other cases where death or injuries resulted from family fights, see Annot., 26 A.L.R. 2d 423 (1952). The evidence in this case would permit the judge to find that the deceased was the aggressor in a bedroom fight with his wife. It would also permit the judge to find that deceased could not reasonably foresee that death by gunshot from [51] the hands of his 11-year-old son (who had already gone to bed) would be a natural or probable result of the altercation with his wife. The judge could properly find that the father advanced on the child only to remove a dangerous weapon from the hands of the child without any expectation that the child would intentionally shoot him. When the substance of the record before us is considered without undue regard to its form, it is perfectly obvious that these are the findings made by the trial judge and that he considered all of the evidence, including the testimony of the child. The judgment is affirmed. Affirmed. Chief Judge Brock and Judge Martin concur.