dissenting: I am constrained to take a different view of this case from that expressed in the majority opinion.
This is a Court of errors. Our appellate jurisdiction is limited to the review upon appeal of decision of the courts below upon matters of law or legal inference. Art. IV, sec. 8, Const. of N. C. This case has been thrice tried in the Superior Court. Three different juries, in trials presided over by three different judges, upon substantially the same testimony, have reached the same conclusion. If these verdicts were not in accord with our own views, nevertheless honest and intelligent jurors, in determining the facts from testimony of the witnesses before them, are as likely to be right as are the members of a court of review.
Twice new trials have been awarded by this Court for incidental errors discovered in the rulings of the trial judges. That the ultimate decision was for the jury was unquestioned.
This is the third appeal. The ease was tried below, in conformity with the two decisions of this Court, and again the verdict of twelve good men and true was in favor of the plaintiff.
I am unable to discover any error of law in the trial.
Let us briefly review the history of this case as revealed by the records on appeal. Plaintiff instituted this action to recover upon a policy of insurance on the life of her son, the policy containing provision for double indemnity upon proof that insured sustained bodily injury resulting in death “through external, violent and accidental means.” Defendant did not deny his death was caused by external and violent means, but alleged that the insured’s death resulted from bodily injuries intentionally inflicted by another. In the first trial, in 1987, Judge Frank Daniels presiding, there was verdict for the plaintiff and judgment accordingly. Defendant’s motion for judgment of nonsuit was denied. Defendant then requested peremptory instruction in its favor to the effect that if the jury found the facts to be as testified they would answer the determinative issue “Yes,” that the death resulted from bodily injuries intentionally inflicted. Exception to refusal to nonsuit and to give this instruction were brought forward in defendant’s assignments of error. Upon the consideration of the appeal here it was held by this Court, Winborne, J., speaking, that the burden rested “upon the defendant to prove facts bringing the case within that provision,” that is, that the death resulted from bodily injuries intentionally inflicted by another. However, for error in charging the jury that the burden was on defendant to show another intentionally shot and killed the insured, instead of *712saying that the burden was on tbe defendant to sbow that the death of insured resulted from bodily injuries intentionally inflicted by another, new trial was awarded.
The case was next tried with Judge Frizzelle presiding. He charged the jury, in respect to the burden of proof, in accord with the opinion of this Court on the former appeal. There was verdict and judgment for plaintiff, and defendant again appealed. The same exceptions as to burden of proof, nonsuit and peremptory instruction were again brought forward and were again considered on the second appeal. Thereupon this Court, after stating the rule set out in Gorham v. Ins. Co., 214 N. C., 526, 200 S. E., 5, and Life Ins. Co. v. Gamer, 303 U. S., 161, with respect to the burden resting on defendant, used this language: “However, considering the pleadings in this case, we are not disposed to hold for error the instructions given by the court below, of which the defendant now complains. This was the view expressed by this Court in the former appeal which has thus become the law of the case.” Error was found, however, in the admission of testimony of a witness that the person who fired the shot from which the death of insured resulted was a stranger to him. This being beyond the personal knowledge of the witness, was held incompetent. This was the only error discovered in the record.
In neither case did the Court question the right of the plaintiff to have her case passed on by a jury. The defendant's exceptions to the refusal of the trial judges to give the repeated requests for peremptory instruction were each time presented to this Court, and not sustained.
The third trial was before Bone, Judge presiding. Again the case was tried in exact accord with the previous decisions of this Court, with the same result. Again the jury, under instructions from the court to which no exception was noted, refused to find an intentional slaying within the meaning of the policy and defendant’s pleading. In this trial the exceptions to the admission of testimony were without merit and were not argued here. There was no exception to the charge as given. The only exception argued was to the refusal of the court to peremptorily instruct the jury to answer the issue in favor of the defendant, that is, that the death of insured was due to injuries intentionally inflicted.
The majority opinion does not question the rule that the previous decisions of the Court constitute the law of the case, equally binding on the trial judge and this Court. But it is said the evidence is different this time. Let us examine that more closely. In all three trials the testimony of the same witness was offered, that of Miss Phelps. To my mind there is no material difference between her testimony this time and what she said on former trials. Here is what she said in the last *713trial: “When the door opened I was seated against the right door. I didn’t know anyone was there until the door opened. The door on the ear opened from the rear to the front. It was opened and a man reached in with his left arm, placed it around my shoulder. I put this hand (left) up and he grabbed it with his left hand. I put this hand (right) up in front of me and he had a pistol in his hand, and when I put my hand up, as best I remember, the gun went off. Alexander (the insured) was bent over playing the radio this way (witness leaning), and as the door opened he was shot. When he fired the gun it fired just the one time. I saw the pistol and knocked it up, and then that instant the gun fired. The door opened and a man stood in the door and put his left arm around me and held my left hand. The gun was in front of my face. I saw it and then my right hand went up.”
Put that was not all the evidence. The defendant Insurance Company also offered the testimony of S. A. Whitehurst: “She (Miss Phelps) said that the pistol was in front of her face and the door came open. In other words, she hit it and knocked it from in front of her face, and the assailant grabbed her, and the moment he grabbed her the pistol fired. She knocked the gun up, and in other words she didn’t know when it came down — that they were in a tussle then and he was trying to drag her out of the car. She said she struck his arm. She said she knocked the gun up the first instant he grabbed her and then they went into a tussle. Apparently, from what she told me, she and the assailant were in a tussle and I understood that about that time the gun fired. I don’t know that the instant she threw up her arm and knocked it up the gun fired, but that they were in a tussle when the gun fired.”
I submit that this evidence is not conclusive of the intentional slaying of the deceased. In all the former considerations given by the Court to this testimony, no such conclusion was reached, else the case had been disposed of on the first appeal. “There is only one reasonable inference to be drawn from this evidence,” says the learned writer of the majority opinion. , But three juries who heard it found differently. To my mind this evidence warrants the inference that Willie Tate had no intention of shooting Alexander Warren. Plainly his purpose was to assault the young lady. In order to do so the evidence is consistent with the view that he may have intended to “hold up” the young man at the point of a pistol, or to overawe both with the display of a weapon. That was the reported method employed by rapists in other parts of the State whose crimes had been widely published.
But in this case Willie Tate met violent resistance from the young lady. When he put his arm around her to pull her out of the car and presented the pistol in front of her face, she fought back. “They were in a tussle, and he was trying to drag her out of the ear.” The pistol *714was in front of her face. She knocked it up. The pistol fired and Warren was killed. What kind of pistol was used does not appear.
Notwithstanding this evidence would make out against Willie Tate a case of murder, as a homicide committed in the attempt to perpetrate a felony, at the same time it would not necessarily defeat recovery on an insurance policy issued to insure against death by external, violent and accidental means. It is a possible and not unreasonable inference from this evidence that the striking of the assailant’s arm caused the pistol to be discharged, or it was discharged in the course of the “tussle” between him and his intended victim. Who knows ? But the burden was on the defendant to show that the bodily injuries to Warren were intentionally inflicted. The jury took the view that the defendant had failed to do so, and answered the issue against it, under correct instructions from the trial judge.
Under this evidence and with the previous decisions of this Court before him, what else could Judge Bone have done than to try the case as he has done? To my mind, after careful study, the trial was free from error of law and should be affirmed.
Clarkson, J., concurs in this opinion.