Sutherland v. Standard Life & Acc. Ins. Co.

• Decision Date: 31 January 1893
• Citation: 54 N.W. 453,87 Iowa 505
• Court: Iowa Supreme Court
• Parties: SUTHERLAND v. STANDARD LIFE & ACC. INS. CO.

87 Iowa 505

54 N.W. 453

SUTHERLAND

v.STANDARD LIFE & ACC. INS. CO.

Supreme Court of Iowa.

Jan. 31, 1893.

Appeal from superior court of Council Bluffs; J. E. F. McGee, Judge.

Action on an accident insurance policy. Judgment for the plaintiff, and the defendant appealed.Ambrose & Duffie and E. E. Aylesworth, for appellant.

S. B. Snyder and J. J. Stewart, for appellee.

GRANGER, J.

The plaintiff is the beneficiary of an accident policy issued by the defendant company to one Richard Miller. In November, 1889, Miller was killed while traveling on the electric motor between Omaha and Council Bluffs. The insurance was “against the effect of injury to the body caused by external violent and accidental means within the meaning of this policy, its agreements and conditions printed herein or on the back hereof.” The following are some of the conditions of the policy: “This insurance does not cover disappearance; nor any injury happening to the insured when in a condition of insanity; nor any injury, fatal or otherwise, of which there is no visible mark upon the body; nor death or disablement happening to the insured while intoxicated, or in consequence of his having been under the influence of any narcotic or any intoxicating drink whatever.” “Suicide or self-inflicted injury, whether felonious or otherwise, and whether the insured be sane or insane; dueling; fighting; wrestling; unnecessary lifting; racing; gymnastic sports, (unless solely for recreation;) voluntary overexertion; unnecessary exposure to danger, unless in an effort to save a human life.” “It is an express condition of this policy that the insured shall at all times use care and diligence for his personal safety and protection.” An averment of the petition is “that on the 9th day of November, 1889, the said Richard Miller was run over by an electric street-car train, and thereby received external and violent injuries, which injuries, within a few hours after the happening thereof, caused his death. The answer contains the following defensive allegations: “(2) That in violation of the rules of said company, and against the protest of its employes having said train in charge, the said Richard Miller persisted in riding on the rear platform of the front car of said motor train, and in climbing on and off the guards around the same. While said Miller was so upon the train he did not use due care and diligence for his personal safety and protection, and that said alleged accident was caused by his want of care and diligence for his personal safety. (3) That at the time of said alleged injury and accident the said Richard Miller was intoxicated. (4) That at the time of the said alleged accident and injury the said Richard Miller was under the influence of intoxicating drinks, and that said alleged accident and injury was in consequence thereof. Wherefore the defendant demands judgment for costs.”

1. The plaintiff, to establish the fact that the death of Miller was accidental within the meaning of the policy, made no proofs to show that he was not negligent, or to negative the claim that he was intoxicated; and at the close of plaintiff's direct evidence appellant moved the court to direct a verdict in its favor, because there was no proof to show that “Miller had complied or was complying with the terms and conditions of the policy as set forth in paragraphs 3 and 5 attached to and made a part of said policy.” They are the paragraphs set out above. The court refused the motion, and its action is assigned as error. The proposition presents the question whether the plaintiff in such a case must, to justify a recovery, make such proof, or are they matters of affirmative defense. As applied to this particular case, a very conclusive answer is that no such proof was required of the plaintiff, because not pleaded by her. Certainly no such proofs are required of the plaintiff unless they are necessary matters of averment, and, if necessary, and not averred, and the omission is passed unchallenged by demurrer, the averments as well as the proofs are waived. Code, § 2650. The effect of a motion in arrest of judgment in such a case we do not determine. By taking issue upon the allegations of the petition it is an admission that they constitute a cause of action, and the defendant cannot insist that the plaintiff shall prove facts outside the record in order to make out his cause of action. Frentress v. Mobley, 10 Iowa, 450. This holding has been many times followed. It will, however, be well for us to consider the question upon another ground. Appellant quotes from Mr. Bliss on Life Insurance, (section 436,) to the effect that an accident “is an unforeseen event, a misfortune, and also such as is not the result of negligence or misconduct.” It is then urged in effect that there should be proof to show that the death was “a misfortune” “and unforeseen event,” and “was not the result of negligence or misconduct.” The evidence clearly justified a finding that the death was a misfortune and an unforeseen event in such a sense as to show that it was accidental within the meaning of the policy, unless the fact of negligence or misconduct was established to defeat such a conclusion. It is not the duty of the plaintiff to establish such facts. Usually the burden of showing a wrongful act is with the party who seeks advantage from it. In Freeman v. Insurance Co., (Mass.) 12 N. E. Rep. 372, it is said: “In an action upon a policy which contains many provisos and conditions there is a practical wisdom, which courts have recognized, in compelling the insurance company to allege and prove the want of compliance with any particular proviso or condition on which it relies.” In that case a condition of the policy was that the assured should use “all due diligence for personal safety and protection.” The question in that case, as it is in this, was, who has the burden of proving the breach of such a condition? It was held to be with the company, and many cases are cited in support of the holding, and, among others, Insurance Co. v. Ewing, 92 U. S. 377.Cronkhite v. Insurance Co., (Wis.) 43 N. W. Rep. 731, is a case much like this, and it is there held that, “if anything contained in the provisos will defeat the action, it is a matter of defense.” The following are additional authorities upon the question: Coburn v. Insurance Co., (Mass.) 13 N. E. Rep. 604; Redman v. Insurance Co., 49 Wis. 431, 4 N. W. Rep. 591;Newman v Association, 76 Iowa, 64, 40 N. W. Rep. 87. Numerous authorities are cited on the question of contributory negligence in actions where a recovery is sought because of negligence, but they are not applicable to this case.

2. The assured came to his death by falling from the platform of the street car and the train passing over him. He was...