Anderson v. New York Life Ins. Co. , 140 Fla. 198 ( 1939 )

Plaintiff in error brought a common law action against the defendant in error to recover the double indemnity feature of a life insurance policy. The face of the policy was paid promptly but double indemnity was declined on the theory that the insured came to his death by suicide and not by accident. At the conclusion of the plaintiff's testimony, there was an instructed verdict for the defendant and the plaintiff sued out writ of error.

The declaration was cast on the theory of accidental death. There were two pleas, one denied accidental death and the other offered suicide as a defense. The insured was found dead in a latrine at the back of his residence with a bullet through his head and his pistol by his feet.

The plaintiff in error relies on Mutual Life Insurance Company of New York v. Johnson, 122 Fla. 567, 166 So. 442, for reversal. The burden was first on the plaintiff to prove that the deceased came to his death by accidental means, this being her reliance for recovery. The defense of suicide must overcome this proof and may not come into the picture if a prima facie case on the basis of accidental death is not made. The evidence has been examined and while we do not feel called on to review it, we see no theory on which it would support a verdict for double indemnity. A prima facie case not having been made on the ground claimed, the burden did not shift to the defendant to overcome that case with evidence on the defense of suicide.

The judgment below is therefore affirmed.

Affirmed.

WHITFIELD, P. J., and BROWN and CHAPMAN, J. J., concur.

TERRELL, C. J., concurs in opinion and judgment.

Justices BUFORD and THOMAS not participating as authorized by Section 4687, Compiled General Laws of 1927, and Rule 21-A of the Rules of this Court.