Appeal from the United States District Court for the Southern District of Illinois. No. 80-5226 -- William L. Beatty, Judge.
Pell and Cudahy, Circuit Judges, and Bonsal, Senior District Judge.*fn*
Defendant J.C. Penney Life Insurance Company appeals from a judgment entered December 2, 1981 in the United States District Court for the Southern District of Illinois, Beatty, J. The judgment followed a jury verdict in favor of plaintiff Cheryl Young in her action to recover the proceeds of an accidental death policy issued in Missouri, covering her and her husband, Anderson Young. Defendant's post-trial motion for judgment notwithstanding the verdict or in the alternative for a new trial was denied by the district court by order filed March 4, 1982.
On appeal, defendant contends that the district court erred in not granting its post-trial motion because: (1) the plaintiff failed to establish, under Missouri law, that her husband's death was accidental; (2) plaintiff's attorney's repeated references to the exclusions contained in the insurance policy were intended to confuse the jury; and (3) defendant was prejudiced by the court's decision to send the policy to the jury during its deliberations. We conclude that defendant has not shown that it is entitled either to judgment notwithstanding the verdict or to a new trial, and accordingly affirm the judgment of the district court.
The plaintiff Cheryl Young, a resident of St. Louis, Missouri, held an insurance policy issued by the defendant, which provided for payment to her of $15,000 in the event of the accidental death of her husband, Anderson Young. Following his death in Brooklyn, Illinois on August 11, 1979, the plaintiff's claim to the proceeds of the policy was rejected by defendant, on the ground that her husband's death was not accidental. At trial, the plaintiff testified that she was not with her husband when he died and did not know what he was doing in Illinois at the time. She stated that she had last seen him the morning before when he was wearing tight pants and that he was not carrying a gun. She also testified that she was not aware of her husband carrying guns. Two Brooklyn, Illinois police officers testified that they were on patrol the night of August 10, 1979 with Chief of Police Douglas. On seeing Anderson Young's car, they followed it into a parking lot in order to question Young about a shooting that had occurred two days before. Both officers testified that Young began yelling at them and, as he reached for his waist with his right hand, Chief Douglas fired two shots at him. The officers testified that they saw a gun on Young, which Chief Douglas removed from him. They also testified that they saw Young reach up under his shirt where they observed a second gun, at which point one of them pulled out a revolver and shot Young again.
On cross-examination, the officers admitted to giving statements soon after the incident which did not mention the existence of any guns. One statement described Young's hand reaching for his waist but did not say that a gun was seen, while the other described Chief Douglas removing something from Young's hand but did not identify it as a gun. The only exhibits introduced at trial were the insurance policy, a death certificate for Anderson Young and a number of letters exchanged between the plaintiff and the defendant concerning the plaintiff's claim to the proceeds of the policy. The death certificate indicated that Young died as a result of a gunshot wound to the chest and two gunshot wounds to the head.
Prior to closing argument, the defendant moved that the insurance policy not be sent to the jury on the ground of relevancy, asserting that the only issue was whether Young's death was accidental. The district court granted the motion, but later sent the policy to the jury in response to a note requesting it.
Defendant first contends that the plaintiff, as a matter of law, failed to show that her husband's death was accidental, and the district court was therefore required to grant defendant's motion for judgment notwithstanding the verdict. The plaintiff does not dispute the defendant's claim that Missouri law is controlling on the issue of accidental death, since the insurance contract was executed in that state. See Hamilton Die Cast, Inc. v. United States Fidelity & Guaranty Co., 508 F.2d 417, 419 (7th Cir. 1975). Under Missouri law, a death is presumed to be accidental when it was caused by "violent means." Stogsdill v. General American Life Insurance Co., 541 S.W.2d 696, 699 (Mo.App. 1976). The presumption may be rebutted by "substantial evidence controverting the presumed fact." Di Paoli v. Prudential Insurance Co., 384 S.W.2d 861, 865 (Mo.App. 1964). There is no dispute here that "violent means" caused Anderson Young's death. Defendant contends that the testimony of the two police officers was sufficient to rebut the presumption of accidental death. The presumption having been rebutted, the burden of going forward shifted back to the plaintiff, who had to "make a submissible case of accidental death without resort to the presumption." Connizzo v. General American Life Insurance Co., 520 S.W.2d 661, 665 (Mo.App. 1975). Defendant contends that the plaintiff failed to do so as a matter of law.
Our decision here "turns on the determination of whether under the facts, as disclosed by the record, there was sufficient evidence to warrant the submission of the case to the trier of fact. In making this determination, we are obliged to view all the evidence, together with all reasonable inferences therefrom, in the light most favorable to plaintiffs." Hannigan v. Sears, Roebuck and Co., 410 F.2d 285, 288 (7th Cir. 1969) (citations omitted); see also George v. Howard Construction Co., 604 S.W.2d 685, 688 (Mo.App. 1980). It is true that the evidence of accidental death presented by the plaintiff was somewhat limited. Her testimony that her husband was not carrying a gun twelve or more hours before he was shot hardly constitutes proof that he was not carrying guns at the time of his death. On the other hand, it was the function of the jury to determine from the evidence submitted to it whether Young's death was accidental. We feel that the jury had sufficient evidence to make this determination.
Under Missouri law, Anderson Young's death does not qualify as accidental if "his own criminal misconduct . . . provoked or induced that which led to his death and the fatal result was the natural and probable consequence of his criminal misconduct." Stokley v. Hartford Accident and Indemnity Co., 321 F. Supp. 18, 21 (W.D.Mo. 1970). Plaintiff's testimony and the conflicting statements of the police officers brought out on cross-examination (in contrast to their testimony on direct) established a jury question as to whether Young provoked his own death by reaching for a gun. Furthermore, the jury could have drawn unfavorable inferences from the failure of the defendant to call Chief Douglas as a witness or to introduce into evidence the guns allegedly taken from Young. It is possible, of course, that the jury simply chose to disbelieve the testimony of the two officers. Under the circumstances, no basis exists for holding that Young's death was not accidental as a matter of law. We find only that there was sufficient evidence to warrant the submission of the case to the jury and thus the district court correctly denied defendant's motion for judgment notwithstanding the verdict.
Defendant next contends that the district court should have ordered a new trial based on the prejudicial effect of references made by the plaintiff's attorney to specific exclusions in the insurance policy.*fn1 According to the defendant, the attorney repeatedly disregarded the court's admonition not to discuss these exclusions and, as a result, the jury was led to believe that shooting deaths were covered by the policy because not specifically excluded.*fn2 Under Missouri law, deaths induced by the insured's own criminal ...