Mutual of Omaha v. George

Citations: 245 Ark. 670; 434 S.W.2d 307; 1968 Ark. LEXIS 1260Docket: 4674

Court: Supreme Court of Arkansas; November 25, 1968; Arkansas; State Supreme Court

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The litigation concerns the circumstances surrounding the death of Carl G. George, who was shot by Henry Criswell on December 27, 1960. Mrs. Ora E. George filed a lawsuit against Mutual of Omaha in the Circuit Court of Stone County after her son’s death, claiming it was accidental under the $5,000 insurance policy issued to him, where she was the beneficiary. The insurer contested the claim, asserting that George's death was not accidental. The trial court ruled in favor of Mrs. George, awarding her the policy amount plus a 12% penalty and an attorney's fee of $500. 

Key witness Henry Criswell testified that on the night of the incident, he was disturbed by George and another intoxicated man honking a car horn outside his home. After telling them to leave, Criswell went inside but became concerned when George repeatedly slammed against his door. Criswell retrieved a shotgun, loaded it while at the door, and fired after George lunged again. He claimed he did not inform George of the gun or his intention to shoot. Criswell noted that he recognized he had hit George when he heard him yell, though he wasn't certain of the exact words. Witness corroborations indicated that Criswell's daughters were present during the incident, but there was no evidence suggesting their presence influenced George's actions.

Both witnesses confirmed that George frequently visited their home, comporting himself as a gentleman without any signs of conflict, such as loud voices or threats. Criswell, who had known George for four to five years, testified that their relationship was amicable, mentioning shared social activities and hunting trips. He clarified that he fired a shot not to harm George but merely to scare him away from the door, indicating he had no intention to kill. After the shot, Criswell informed a neighbor, Ralph Rorie, about the incident, and upon returning to his property, they discovered George’s body near the front door, with no weapons found at the scene, only a closed pocket knife and a pack of cigarettes. The Prosecuting Attorney, David Hodges, noted that a manslaughter charge against Criswell was previously dismissed, supporting the conclusion that George's death was accidental. The court highlighted that, under state law, proof of death from external injuries raises a presumption of accidental death. The burden of proof lies with the insurer to demonstrate otherwise. The court referenced previous cases where accidental death was determined based on the aggressor's knowledge of the other party's potential threat. The appellant’s argument that the insured was the aggressor failed to align with the facts of the case being analyzed, which involved a frail victim with no prior knowledge of aggression from the assailant.

The witness, Hamn, was physically incapable of defending himself against Lemay due to sore and swollen hands, making it impossible for him to inflict harm. Witnesses confirmed that Lemay was the aggressor, having choked Hamn and knocked him over a soda fountain, leaving no escape route for Hamn. During the altercation, Hamn shot and killed Lemay in self-defense. The court reversed a previous judgment against Aetna, emphasizing that Lemay's actions instigated the conflict, asserting that the evidence clearly indicated he was the wrongdoer.

In the current case, significant differences in circumstances were noted: the individuals involved had a history of friendship without previous conflicts. On the night of the shooting, George attempted to persuade Criswell to drink but made no threats and was unarmed. Criswell did not inform George of his armed status, and conflicting testimonies arose regarding Criswell's intentions when he mentioned getting his gun. The environment was dark, with obstructed views, and Criswell claimed he fired a warning shot without intent to kill. Under these conditions, George had no reason to believe he was in danger, and prior cases with stronger evidence of aggressiveness had been deemed accidental.

Evidence indicated prior disputes between Chambers and Evatt, including name-calling by Chambers during and after their quarrel. The court noted additional factors suggesting Chambers was not intoxicated and that the positioning of the body and pistol contradicted eyewitness accounts of the killing. The court emphasized that the jury has the exclusive authority to determine the weight of evidence, and if substantial evidence exists to support the verdict, it will not be overturned on appeal. Both parties sought a directed verdict, leading the court to discharge the jury and deliberate on the case itself, which was deemed appropriate given both motions. 

The court concluded that the evidence raised a factual question about whether George's death was accidental as defined in the insurance policy, affirming the trial court's judgment. An additional attorney fee of $500 for services rendered on appeal was granted. Justice Byrd dissented, asserting that if an insured party is the aggressor in a confrontation leading to serious injury or death, such death is not considered "accidental." It was acknowledged that George was aggressively attempting to break down a door despite objections, and Byrd argued that one cannot expect gentlemanly treatment after such an act, thereby implying that George should have anticipated serious injury. Byrd rejected the idea that Criswell’s intent to scare George away could render the death accidental, comparing it to a scenario where a duelist might claim an accidental injury. Ultimately, Byrd contended that George's death was not accidental, and noted there was no indication George intended to use the knife found with him as a weapon.