McGill v. Town of Lumberton

BaRNhill, J.,

dissenting. The deceased was last seen alive about 9:30 or 10:00 a.m., and his body was found about 6:00 o’clock p.m. When found he was in a uniform and the pistol he usually carried was in his holster. He died from a pistol shot wound, the bullet having entered at the root of the nose, ranging backward and downward. His body was found in a small room in the city hall building of the town of Lumberton. The door to the room was equipped with a Yale lock which automatically locked the door when it was closed, and the door was closed and locked and the windows were closed and locked. The door could not be opened from the outside except with a key.

The deceased was found about the center of the room with his feet near a chair and there was a revolver, which was ordinarily kept in a box nailed in the window on the east side of the building, lying at his feet.

The facts in this ease are such that I find it impossible to agree with the majority. I do not consider Warren v. Ins. Co., ante, 402, authoritative, except as to the point that evidence of death by violent means is prima facie evidence of death by accident. In that case plaintiff was suing on the double indemnity provisions of a life insurance policy, which included a clause excluding death by suicide. As the plaintiff was only required to make out a prima facie case of death by violent means evidence of violent death was sufficient for that purpose. As the defendant sought to avoid liability under the exclusion clause the burden then shifted to it to show suicide. Here plaintiff was required to show more than an injury by accident resulting in death. He must show that the injury arose out of and in the course of employment. While the evidence tending to show that deceased died from a pistol shot wound is prima facie evidence of accident, it raises no other presumption and does not relieve the plaintiffs of the burden of showing that such injury also arose out of and in the course of his employmént. This they have failed to do.

Nor do I think that ch. 120, sec. 13, Public Laws 1929, is pertinent on the particular facts in this case. Plaintiffs must first show that the deceased suffered an injury arising out of and in the course of employment which caused death before any burden rests upon the defendant to go forward and undertake to avoid liability on the plea that such injury was willfully inflicted. Until a prima facie case of liability is made *756 out the issue as to the willful intention of the employee to injure or kill himself does not arise. Until there is evidence of liability there is nothing from which the defendant need undertake to exempt itself or to prove a forfeiture of the right to an award.

Negligence cases are analogous. As in those cases the defendant is not put to proof of contributory negligence until there is first established a prima facie case of negligence, so, here, the defendant is not put to proof of an allegation that the injury resulting in death was willfully inflicted until there is first a prima facie case established tending to show that the deceased suffered an injury by accident arising out of and in the course of his employment.

Even so, while the Commission did not use direct language to that effect, it is clear from this record that the Commission in fact placed the burden on the defendant much more heavily than the law requires. The last sentence in that part of the opinion of the hearing Commissioner quoted in the majority opinion, to wit: “After resolving every doubt in favor of the claimants in this case we are of the opinion that the burden has not been sustained,” clearly indicates that the defendant was required to remove from the minds of the Commission every doubt as to the right of the plaintiffs to recover.

While all the evidence tends to show that the deceased suffered an injury by accident resulting in his death and that such injury was received in the course of his employment — that is, in the daytime, when he was ordinarily on active duty — there is no evidence tending to show that the accident arose out of his employment. In the WiM'ren case the burden did not shift to the defendant to establish its affirmative defense until after the plaintiff had first made out a prima facie case. In this proceedings the burden does not shift until the claimants have first offered evidence which at least established a prima facie right of recovery. The evidence in the case cannot be construed as establishing a prima facie cause of action unless we hold that mere evidence that the deceased died from a pistol shot wound is evidence not only of accidental death, but is also evidence that he suffered such injury by accident which arose out of and in the course of his employment.

Under these circumstances the Commission was not required to make a specific finding as to whether the injury was intentionally inflicted by the deceased.

ScheNCK and Deven, JJ\, concur in dissent.