DEVIN, J., dissenting.
CLARKSON, J., concurs in dissent. From judgment on verdict for plaintiff defendant appealed. This is the same case reported in 212 N.C. 354, 193 S.E. 293, and215 N.C. 402, 2 S.E.2d 17, where the material facts are set forth.
In actions such as this upon the provision of a policy of insurance against death by accident or accidental means, where unexplained death by violence is shown, nothing else appearing, without the existence of some presumption, the cause of death might be left in the field of speculation. Was the death caused by accidental means, or was it a case of suicide, or was it an intentional and unlawful killing? Under these circumstances the law presumes the lawful rather than the unlawful. Thus the rule arises that where an unexplained death by violence is shown, nothing else appearing, it is presumed that the death resulted from accidental means. When, however, there is evidence tending to explain the cause of death, it becomes a question of fact for the determination of the jury. On the issue thus raised, under the decisions of this Court on former appeals in this case, such decisions constitute the law of the case and we are bound thereby.
Even so, the question here presented is different from those discussed in the former opinions and the substance of the testimony of Miss *Page 707 Phelps is material. It is more in detail than on the former trial and throws an entirely different light upon the occurrence.
She testified, in part, as follows: "The door on the car opened from the rear to the front. It was opened, and a man reached in with his left arm, placed it around my shoulders. I put this hand up and he grabbed it with his left hand; I put this hand up in front of me and he had a pistol in his hand, and when I put my hand up, as best as I remember, the gun went off. Alexander was bent over playing the radio this way (witness leaning), and as the door opened he shot . . . . I saw the pistol and knocked it up and at that instant the gun fired . . . the gun was in front of my face. I saw it and then my right hand went up. I don't remember whether that was done to protect myself."
In response to a question as to how the pistol was pointed the witness illustrated by the use of a pencil which was held diagonally in front of her face and pointed downwardly to her left. That was toward the deceased.
Conceding that when death by violence is shown, nothing else appearing, a defendant, who seeks to avoid liability on the grounds that the death resulted from bodily injuries inflicted intentionally by another, has the burden of going forward with evidence — that is, that evidence of death by external violence is sufficient to take the case to the jury,Warren v. Ins. Co., 215 N.C. 402, 2 S.E.2d 17, something more than unexplained death by violence here appears.
There is no unqualified admission in the answer. Thus in the absence of evidence from the defendant, the plaintiff, without introduction of evidence, would not be entitled to judgment on the pleadings or to a directed, verdict. And yet the judge held that the burden of going forward with the evidence rested upon the defendant without any evidence whatsoever from the plaintiff. She was not even required to offer so much of the admission in the answer as tended to show death by external violence. The defendant was thereby deprived of the right, at least, to cross-examine the principal witness heretofore relied upon by the plaintiff. Whether this constituted error we need not now decide, for the defendant elected to offer its evidence from which it appears that the death of the deceased was proximately caused by external violence.
The defendant, having proceeded with its proof as required by the court, then tendered its prayer for instructions. If all of the evidence offered by the defendant — the plaintiff having offered none — tends to explain the death by violence and to show that the death resulted from a wound intentionally inflicted by another, then as a matter of law, the defendant was entitled to have the court instruct the jury in accord with its prayer. Even though the evidence was such as to require the submission of an issue, whether the testimony offered, if believed and *Page 708 accepted, is sufficient to prove a contested fact presents a question of law. Spruill v. Ins. Co., 120 N.C. 141 — in which there was a directed verdict as to suicide under a similar provision — S. v.Prince, 182 N.C. 788, 108 S.E. 330; Reinhardt v. Ins. Co., 201 N.C. 785,161 S.E. 528; McIntosh's P. P., 632; Peterson v. Sucro,101 F.2d 282, and cases there cited. The rule as approved by the cited and many other decisions is simply stated in McIntosh's P. P., supra, as follows: "If the facts are admitted or established and only one inference can be drawn from them, the judge may draw the inference and so direct the jury."
Thus on this appeal we have presented the one question: Does the evidence offered by the defendant, if believed, establish an intentional killing?
The occurrences related by Miss Phelps were instantaneously contemporaneous. The door opened and a man caught her around her shoulders. She put her hand up and the pistol fired. As the door opened he shot. She knocked the pistol up and at that instant the gun fired. Thus, it appears that the door was opened, she was grabbed and the pistol fired at the same instant. When the pistol fired it was pointed diagonally in front and across her body, downward to the left where the deceased was sitting leaning over adjusting his radio. After inflicting a fatal wound upon the deceased and after dragging Miss Phelps from the car Tate then went back to the automobile and looked in, apparently for the sole purpose of discovering whether he had effectively eliminated resistance from that source. Having satisfied himself in that respect he proceeded in his efforts to ravish her.
There is only one reasonable inference to be drawn from this evidence. Tate, a man of diabolical heart, bent on mischief, for the purpose of criminally assaulting the woman and with the intent to remove any possible interference, deliberately incapacitated the man so that he might not come to her aid. As stated by Devin, J., in Warren v. Ins. Co., supra, "Indeed all the evidence tends to show that his (Tate's) purpose with respect to her (Miss Phelps) was to assault her." That purpose Tate could not hope to accomplish without disabling, by violence, the deceased who was her companion and fiance. That this was his object is plainly demonstrated by the manner in which he threw open the automobile door, aimed his pistol at Miss Phelps' escort and threw his other arm around Miss Phelps. He wanted her alive and not dead. He wanted the man either dead or so incapacitated that he could not render her aid and assistance. He acted accordingly by deliberately shooting the man and then assaulting the woman.
The pointing of the pistol at the deceased constituted a misdemeanor and one who commits an unlawful act is presumed to intend the natural *Page 709 consequence thereof and, upon the evidence on this record, eliminating consideration of the intent of Tate to commit a felony, he would be guilty of murder in the second degree even though he first pointed the pistol at Miss Phelps and it was so deflected when fired as to inflict a fatal wound on Warren.
Conceding that the presumption of intent does not apply in a civil action as against a third party, still the only reasonable inference to be drawn from this testimony leads irresistibly to the conclusion that Tate shot intentionally for the purpose of incapacitating the deceased. He had the pistol drawn, he was bent on an unlawful purpose which could be accomplished only when Miss Phelps was alive and only in the event that her companion was incapacitated. Can it be said with any degree of reason that the evidence shows other than that he intended to use the weapon to prevent resistance from or interference by her companion?
It is true there is evidence that Miss Phelps, in her struggle, threw up her hand and struck the pistol at the time it was pointed toward the deceased, but there is no evidence that in striking the pistol she either materially deflected it or caused it to discharge. Thus, this item, of testimony does not contradict the other testimony, nor does it require a different conclusion.
It is argued, however, that this blow might have caused the pistol to fire. It is a matter of common knowledge that pistols are fired by pulling the trigger and that, ordinarily, a pistol will not explode from a blow. The one is the usual and expected. The other the unusual and exceptional. Certainly there is no evidence that this one could be fired in that manner.
The mere simultaneousness of the blow and of the discharge of the pistol does not prove, and is alone not evidence of, the one as the cause of the other. It is as reasonable to suppose that the discharge of the pistol caused the blow to be struck as it is to assume that the striking of the blow caused the murderer to fire the shot. It will be noted that Miss Phelps does not even say that "immediately" after she struck the blow the pistol fired. She says the blow and the shot were simultaneous. Accepting her precise statement, it negatives the idea that the blow caused the shot to be fired.
When we venture to assume that by striking the pistol in her struggle with Tate Miss Phelps caused it to fire we are venturing into a field of pure surmise and speculation which is unreal, unreasonable and unnatural. There is nothing in the evidence to warrant that conclusion. If we are to thus speculate it is as reasonable to conclude that when Tate saw the deceased leaning over and reaching toward the cowl of his automobile in adjusting his radio, he apprehended that the deceased was reaching for a weapon and then shot in order to kill him before he could do so. *Page 710
"The sufficiency of the evidence in law to go to the jury does not depend upon the doctrine of chances. However confidently one in his own affairs may base his judgment on mere probability as to a proposition of fact and as a basis for the judgment of the court, he must adduce evidence of other than a majority of chances that the fact to be proved does exist. It must be more than sufficient for a mere guess and must be such as tends to actual proof." S. v. Prince, supra.
Accepting every syllable of Miss Phelps' statement as true, there is no evidence tending to show or permitting the inference of an accidental killing. To the contrary, all of the evidence, considered in the light most favorable to the plaintiff, tends to show that the deceased suffered death as the result of a gunshot wound intentionally inflicted by another. On the testimony in this record no other conclusion is sound but must rest upon conjecture unsupported by any reasonable inference to be drawn from the evidence. The prayer tendered by the defendant should have been given.
It is true that the record contains the evidence of the witness Whitehurst as to statements relating to the occurrence made to him by Miss Phelps. These statements are, in some respects, in conflict with the testimony of Miss Phelps and are more in line with her former testimony. But this is not substantive evidence. It was competent only for the purpose of corroboration or contradiction, and it could be considered by the jury only as it affected her credibility. Her testimony was the only substantive evidence upon which the jury was required to answer the issue. Under the instruction requested it was left for the jury to determine whether, in view of all the circumstances, they would accept and believe her statements.
Our position here cannot be considered in conflict with the prior opinions of this Court on former appeals in this case. In the first trial Miss Phelps testified: "The gun was pointed in my face and I pushed it out of the way like that, and a second later it fired." At the second trial she testified: "The first time I saw the gun it was pointed in my face and I pushed it out of the way like that, and a second later it fired." This Court was of the opinion that these statements were sufficient to support the inference that Tate assaulted Miss Phelps with a deadly weapon and, by reason of the fact that she pushed the pistol out of the way, the jury might be justified in finding that as to Warren the killing was accidental. Through her more detailed statement as to how the pistol was pointing and as to the manner and time of its firing it is made now to appear that the pistol was in fact pointed at the deceased and fired at the very instant she struck it. Therefore, on this appeal the evidence is substantially different from the testimony on the former appeals. The inferential holding on the former appeals that the evidence *Page 711 did not justify a judgment of nonsuit or a directed verdict is, therefore, not the law of this case on this evidence.
New trial.