104 A. 792 (Me. 1918), Archibald v. Order of United Commercial Travelers

Citation:104 A. 792, 117 Me. 418
Opinion Judge:CORNISH, C. J.
Party Name:ARCHIBALD v. ORDER OF UNITED COMMERCIAL TRAVELERS.
Attorney:McGillicuddy & Morey, of Lewiston, for plaintiff. George C. Wing and George C. Wing, Jr., both of Auburn, and John A. Millener, of Columbus, Ohio, for defendant.
Judge Panel:Argued before CORNISH, C. J., and SPEAR, HANSON, PHILBROOK, DUNN, and MORRILL, JJ.
Case Date:November 04, 1918
Court:Supreme Judicial Court of Maine
 
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Page 792

104 A. 792 (Me. 1918)

117 Me. 418

ARCHIBALD

v.

ORDER OF UNITED COMMERCIAL TRAVELERS.

Supreme Judicial Court of Maine.

November 4, 1918

Argued before CORNISH, C. J., and SPEAR, HANSON, PHILBROOK, DUNN, and MORRILL, JJ.

McGillicuddy & Morey, of Lewiston, for plaintiff.

George C. Wing and George C. Wing, Jr., both of Auburn, and John A. Millener, of Columbus, Ohio, for defendant.

CORNISH, C. J.

On January 2, 1914, the defendant issued to the plaintiff's husband, Ernest U. Archibald, a certificate of insurance in the sum of $6,300, payable to the plaintiff as beneficiary in case of death occasioned by bodily injury effected through external, violent, and accidental means; subject, however, to certain provisions, conditions and requirements contained in the constitution of the order. On January 31, 1914, Mr. Archibald was struck and killed by a locomotive while walking on the tracks of the Maine Central Railroad Company in the city of Lewiston. This suit was brought to recover the amount due under the certificate, and, after a verdict for the plaintiff, is now before this court on defendant's exceptions. A large number of exceptions was reserved; but it is necessary to consider only one, the refusal of the presiding justice to direct a verdict for the defendant. We think this direction should have been given.

The constitution of the defendant order contains many exemptions. Among others, it is provided that the benefits under the certificate shall not cover any death, disability, or loss resulting from "self-destruction (while sane or insane)," "the violation of any law," "or from voluntary exposure to danger." Each of these defenses is set up by the defendant, and in this class of cases the burden is on the defendant to prove the existence of facts which create the exemption.

In ordinary actions for personal injuries, the burden is upon the plaintiff to prove his due care; but, in an action upon the contract of insurance, it devolves upon the defendant to prove the exemption which it sets up in defense. Keene v. New Eng. Acc. Ass'n, 161 Mass. 149, 36 N.E. 891; Garcelon v. Commercial Travelers' Ass'n, 195 Mass. 531, 81 N.E. 201, 10 L.R.A. (N. S.) 961.

Page 793

The defense of suicide was not made out. No such inference could reasonably be drawn from the facts and circumstances as disclosed by the evidence.

The defense of...

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