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LONG v. METROPOLITAN LIFE INS. CO.

January 10, 1956

CLARA M. LONG, APPELLANT,
v.
METROPOLITAN LIFE INSURANCE COMPANY, RESPONDENT.



The opinion of the court was delivered by: Legge, Justice.

January 10, 1956.

Appellant, as beneficiary of a policy of insurance in the face amount of $500.00 issued by respondent on the life of her late husband, Robert A. Long, brought this action to recover the additional death benefit of $500.00 provided in the "double indemnity" clause of the policy to be paid "upon receipt of due proof that the death of the insured resulted, directly and independently of all other causes, from bodily injuries caused solely by external, violent and accidental means". It was stipulated at the time of the trial that the face amount of the policy had been paid to appellant; and the only issue before the court was whether respondent was liable for the additional death benefit above mentioned. In its answer, respondent denied that the death of the insured had resulted from bodily injuries caused solely by external, violent and accidental means as alleged in the complaint, and alleged that his death was suicidal and therefore within the exclusion clause of policy reading as follows: "The additional death benefit shall not be payable if the insured's death * * * is the result of self-destruction, whether sane or insane". At the conclusion of all the testimony, respondent's counsel moved for direction of a verdict upon the following grounds:

1. That the plaintiff had failed to prove an accidental death within the meaning of the policy, and

2. That the only reasonable inference from all the testimony was that the insured had committed suicide.

The trial judge granted the motion on the second ground, and the correctness of his ruling is challenged by this appeal.

About nine o'clock on the morning of Monday, January 25, 1954, one Curtis Smith, driving a tractor-trailer loaded with automobiles from Detroit, Michigan, for delivery in South Carolina, was proceeding slowly up-grade on U.S. Highway 25 in the mountainous part of North Carolina about a mile north of the North Carolina-South Carolina line, when a man, whom he had never seen before, walked toward him from the east side of the road, signalling him to stop. He did so, and the stranger came up to him, saying that he had been shot, and handing him a piece of paper in which a coin was wrapped, asked him to call the telephone numbers that he had written there. Smith asked the man if he could help him in any way, but the latter replied in the negative and repeated his request that Smith call the numbers written on the paper. The man, who was apparently sober, and about whose manner of walking there was nothing abnormal, showed no sign of injury, of any kind. Nobody else was in sight. There was a 1950 or 1951 model Buick automobile, with South Carolina license plate, parked off the road, on the east side, headed north. Smith, who had frequently travelled this route, proceeded south on U.S. Highway 25 about eight miles to a roadside motor court and restaurant where he knew there was a telephone. There he told the proprietor of his encounter with the strange man, and together they opened the paper, which Smith had not opened before. It appeared to be the inner wrapping of a package of cigarettes, one side being coated with tinfoil, and in it was wrapped a twenty-five cent piece. On the white side of the paper was scribbled in pencil these words:

"Please call my wife 56436 or 53783

Deaf and Dum in the car

                                     "Bob Long
                                     "Greenville"
Smith testified that he thereupon called the first number, but received no answer; that he then called the second number and a lady answered, and he told her of the incident, of which she said that she knew nothing; and he then informed her of his whereabouts and stated that he would remain there if he could be of further help. Having waited at the restaurant for some thirty minutes without receiving a call, Smith left the pencilled note and the twenty-five-cent piece with the proprietor, and then proceeded on his journey. He had gone a few miles when he was stopped by two deputy sheriffs, who asked if he was the person who had informed the proprietor of the restaurant and had made the telephone calls before mentioned. He recounted the story to them and thereupon resumed his journey.

Paul Batson, a deputy sheriff of Greenville County, testified that on January 25, 1954, he and another deputy were assigned to investigate a report that had been telephoned to the sheriff's office about 9:40 that morning, to the effect that a man in a 1951 Buick automobile had been shot near the North Carolina line. These deputies went to the motor court-restaurant before mentioned, interviewed the proprietor, procured from him the note and the twenty-five-cent piece, and then, turning back, overtook the tractor-trailer and questioned the truck driver as before stated. They then proceeded northward on U.S. Highway 25 to Hendersonville, North Carolina, looking for the man and the Buick automobile, but found neither, and thereupon returned to Greenville.

From its junction with U.S. Highway 25 at the village of Travelers Rest, some nine miles north of Greenville, U.S. Highway 276 (known as the Geer Highway) runs northwest through Caesar's Head, South Carolina, to Brevard, North Carolina. As one travels this highway from Travelers Rest toward Brevard, the highway climbs steeply from the Wild Cat Service Station to Ceasar's Head, a distance of several miles.

At 8:05 a. m. on the morning of January 26, 1954, a bus driver, on his way from Brevard to Greenville, telephoned the sheriff's office in Greenville to report that he had found a man dead in an automobile on the Geer Highway about a mile and a half above the Wild Cat Service Station. Deputy Batson and the other deputy who had accompanied him on his search the morning before proceeded to this location and there found Robert A. Long dead, slumped forward on the rear seat of his 1951 Buick automobile, his head almost touching the floor, and an oily rag in his left hand. On the floor of the car was a small pistol of foreign make. The car was parked on a wide "pull-out" or "turn around" place on the right-hand side of the highway from the standpoint of one driving from Travelers Rest to Caesar's Head, and of course in plain view. Mr. Batson testified that there was at the car Mr. R.R. Reese, from whom he got certain information as the result of which he looked in the back seat of the car. Reese did not testify. The automobile doors were closed when Batson arrived. Batson testified that the car fitted the description given him the day before by Smith, the truck driver.

Following Batson's telephone call to the sheriff's office, the Coroner, Chief Deputy Sheriff Putnam, Deputy Sheriff Gerald, and a photographer, came to the scene. Deputy Batson testified that pending their arrival, and until the pictures were taken, nothing about the car had been touched or disturbed.

Deputy Sheriff Gerald testified that there was nothing about Mr. Long's clothing or the interior of the car indicating that there had been any struggle; that there were in the chamber of the pistol one empty and two loaded cartridges; and that the oily rag, which he examined, was powder-burned. He did not examine the body, which was taken to the Greenville Hospital for autopsy.

Dr. J.I. Converse, who performed the autopsy, testified that the only evidence of violence found on the body was a wound made by a bullet that had entered the chest at the anterior sixth interspace, two inches left lateral of the sternum, had penetrated the lower lobe of the left lung, the heart, and the lower lobe of the right lung, and was recovered from under the skin in the tenth posterior interspace in the posterior axillary line. Dr. Converse also testified that there were marked powder burns around the entrance of the wound.

Robert A. Long was 46 years of age at the time of his death. He and his wife, appellant here, and their three children, lived on the outskirts of Greenville, next door to her mother's residence. He had been employed at the Greenville disposal plant and his wife worked as clerk in a department store. Following is the substance of her testimony in chief:

Mr. Long's car, a four-door sedan, had been left, on the night of January 24, 1955, parked as usual alongside, and within about three feet of, their house, in the driveway, and headed towards the street, the driver's side of the car being farthest from the house. The front of the car was covered, for protection against frost, with a piece of canvas which extended as far back as the front part of the windows of the two front doors. At about 5:30 in the morning of January 25, Mr. Long aroused his wife and told her that he thought someone had been in the car, because the door was open. To quote from her testimony:

"He said when he went to get the morning paper he saw a man standing at the driveway; and I told him to go see what had happened to the car. So he came on back in and he acted like he was kinda afraid. He wanted me to go call the police, and I said `you go'. We had to go to my mother's next door, and I told him to go and he didn't want to go.

"Q. You didn't have a telephone in your house? A. No, sir. I have one now. I said if he was afraid to go out I wasn't going out myself and it dark.

"Q. Then what else took place? A. So he put on his boots — he had on his house slippers — like he was going to work; so when he started to leave he wrote his brother's telephone number down and the number of the tag and told me to call `Rufe' if he didn't come back, so, when he left, he said, `Well, I'll see you about 9:00 o'clock' — that's when he usually came in the store and had coffee.

"Q. What was it he told you to do if he didn't come back? A. To call his brother.

"Q. Then he said what about come to the store? A. He said he would come in and see me but he didn't. So he says,

`If there's anybody in the car I'll just get in and take them on away from the house. I'll flash the car lights if there's anybody in there!

"Q. Did he say how many times he would flash the car lights? A. No. And I thought, well, maybe he is just doing that.

"Q. Did he go out to the car? A. Yes.

"Q. Did he flash the lights? A. Yes, sir, he ...


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