{
  "id": 8524189,
  "name": "MAXINE V. MOORE, As Executrix of the Estate of Allan Pratt Moore, and MAXINE V. MOORE, Individually v. UNION FIDELITY LIFE INSURANCE COMPANY",
  "name_abbreviation": "Moore v. Union Fidelity Life Insurance",
  "decision_date": "1982-04-06",
  "docket_number": "No. 8121DC651",
  "first_page": "741",
  "last_page": "744",
  "citations": [
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  "court": {
    "name_abbreviation": "N.C. Ct. App.",
    "id": 14983,
    "name": "North Carolina Court of Appeals"
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  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
  "cites_to": [
    {
      "cite": "255 S.E. 2d 160",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "weight": 4,
      "year": 1979,
      "pin_cites": [
        {
          "page": "162"
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        {
          "page": "165"
        },
        {
          "page": "165"
        }
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      "opinion_index": 0
    },
    {
      "cite": "297 N.C. 375",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8570428
      ],
      "year": 1979,
      "opinion_index": 0,
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  "last_updated": "2023-07-14T17:44:21.707745+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "Chief Judge MORRIS and Judge VAUGHN concur."
    ],
    "parties": [
      "MAXINE V. MOORE, As Executrix of the Estate of Allan Pratt Moore, and MAXINE V. MOORE, Individually v. UNION FIDELITY LIFE INSURANCE COMPANY"
    ],
    "opinions": [
      {
        "text": "HEDRICK, Judge.\nThe sole argument propounded by plaintiff in her brief is that \u201c[t]he trial court committed prejudicial error by instructing the jury that if they were unable to determine where the truth lies that the insured died as a result of a self-inflicted gunshot wound, that they should not find an accidental death.\u201d Plaintiff argues that defendant\u2019s contention that Allan Moore\u2019s death was suicide is an affirmative defense for which defendant bears the burden of persuasion, and that the court erred in failing to so instruct.\nOur decision on this appeal is controlled by Moore v. Union Fidelity Life Insurance Co., 297 N.C. 375, 255 S.E. 2d 160 (1979), when this same case was before our Supreme Court.\nIn the present case, plaintiff \u201chad the burden of showing that her husband died as a result of accidental bodily injury within the meaning of the policy issued by defendant.\u201d Moore, supra at 378, 255 S.E. 2d at 162. Plaintiff did present evidence tending to show that Allan Moore\u2019s death was caused by unexplained, violent, and external means. Such evidence raised a presumption that his death was by accidental means; such a presumption, however, \u201cin no event . . . operate[s] to relieve the plaintiff of the burden of persuasion on the issue of accidental death.\u201d Moore, supra at 382, 255 S.E. 2d at 165. Furthermore, \u201c[i]f evidence of non-accidental death is presented, then the presumption per se no longer applies, and the question of accidental death is one for the jury,\u201d Moore, supra at 382, 255 S.E. 2d at 165.\nThe evidence offered by defendant which tended to show that Allan Moore\u2019s death was a suicide was not, as plaintiff contends, offered to establish an affirmative defense. Rather, such evidence was \u201cevidence of non-accidental death\u201d offered to rebut the presumption of accidental death. The mere presentation of such evidence was sufficient to enable defendant to avoid the mandatory effect of a presumption and to permit the jury to decide, without any peremptory instructions, whether the death was accidental. Moore, supra. Defendant, to avoid an instruction that the jury must find an accidental death if it believed the evidence of violent and unexplained death, did not have to prove suicide by a preponderance of the evidence but needed only to present evidence tending to rebut the presumed fact that the death was accidental, Moore, supra, and defendant presented such evidence. The burden of persuasion in the present case remained on plaintiff to prove that the death was by accidental means. Moore, supra. This burden was properly allocated by the trial court in the instruction challenged by the exception upon which this assignment of error is based. Plaintiff\u2019s assignment of error is overruled.\nIn the trial below, we find\nNo error.\nChief Judge MORRIS and Judge VAUGHN concur.",
        "type": "majority",
        "author": "HEDRICK, Judge."
      }
    ],
    "attorneys": [
      "Keith & Smithwick, by Thomas J. Keith for plaintiff appellant.",
      "Petree, Stockton, Robinson, Vaughn, Glaze & Maready, by James H. Kelly, Jr., for defendant appellee."
    ],
    "corrections": "",
    "head_matter": "MAXINE V. MOORE, As Executrix of the Estate of Allan Pratt Moore, and MAXINE V. MOORE, Individually v. UNION FIDELITY LIFE INSURANCE COMPANY\nNo. 8121DC651\n(Filed 6 April 1982)\nInsurance \u00a7 67.3\u2014 death benefits under accident policy \u2014 instructions on burden of proof\nIn an action to recover, death benefits under an accident policy wherein plaintiff presented evidence that insured\u2019s death was caused by the unexplained firing of a pistol and defendant presented evidence that the death was suicide, the trial court did not err in instructing the jury that if it was unable to determine where the truth lies about insured\u2019s death, it should not find an accidental death since defendant\u2019s evidence that the .death resulted from suicide was offered not to establish an affirmative defense but to rebut the presumption that the death was by accidental means; defendant\u2019s evidence was sufficient to rebut such presumption; and the court\u2019s instruction properly allocated to plaintiff the burden to prove that the death was by accidental means.\nAPPEAL by plaintiff from Tanis, Judge. Judgment entered 22 January 1981 in District Court, FORSYTH County. Heard in the Court of Appeals on 1 March 1982.\nThis appeal arises from plaintiffs action to recover on an insurance policy insuring plaintiffs husband, Allan Moore, \u201cagainst loss incurred by the insured resulting directly and independently of all other causes from accidental bodily injury.\u201d Plaintiff sought to invoke the benefits of such policy upon the death of her husband who died as a result of a gunshot wound on 14 September 1973. The policy insuring Allan Moore contained the following provision: \u201cEXCEPTIONS: The insurance provided by this policy does not cover death, disability, or other loss which is caused: ... (2) by suicide or any attempt thereat (sane or insane) . . . .\u201d At trial, plaintiff presented evidence tending to show that Allan Moore\u2019s death was caused by unexplained violence of external means, to wit, the firing of a gun, and defendant presented evidence tending to show that Allan Moore\u2019s death was suicide and was caused by his intentionally shooting himself with a gun. The jury was presented the following issue: \u201cWas the death of the Plaintiff\u2019s deceased a result of accidental bodily injury?\u201d The jury answered in the negative and the court ordered \u201cthat the plaintiff have and recover nothing on her claim against the defendant.\u201d Plaintiff appealed.\nKeith & Smithwick, by Thomas J. Keith for plaintiff appellant.\nPetree, Stockton, Robinson, Vaughn, Glaze & Maready, by James H. Kelly, Jr., for defendant appellee."
  },
  "file_name": "0741-01",
  "first_page_order": 773,
  "last_page_order": 776
}