Massachusetts Bonding & Ins. Co. v. Santee

• Decision Date: 09 January 1933
• Docket Number: No. 6900.,6900.
• Citation: 62 F.2d 724
• Parties: MASSACHUSETTS BONDING & INS. CO. v. SANTEE.
• Court: U.S. Court of Appeals — Ninth Circuit

62 F.2d 724 (1933)

MASSACHUSETTS BONDING & INS. CO. v. SANTEE.

No. 6900.

Circuit Court of Appeals, Ninth Circuit.

January 9, 1933.

Jas. A. Williams, of Spokane, Wash., for appellant.

La Berge, Cheney & Hutcheson, Harry A. La Berge, Joseph C. Cheney, and Elwood Hutcheson, all of Yakima, Wash., for appellee.

Before WILBUR and SAWTELLE, Circuit Judges.

SAWTELLE, Circuit Judge.

This action was commenced by the appellee to recover the proceeds of a $7,500 accident insurance policy issued by appellant to Charles L. Santee, deceased. The policy insured "against bodily injury sustained during the life of this policy directly and independently of all other causes through accidental means."

The insured died on September 15, 1931, during the life of the policy in suit. The complaint alleges, and the answer admits, that the death of the insured was caused by gunshot wounds inflicted about an hour previous to his death by a revolver fired by one W. B. Mahan. Mahan and his wife were the only witnesses to the killing, and they both refused to testify in regard to the shooting, on the ground that their testimony might tend to incriminate them. There was no evidence, therefore, regarding the circumstances surrounding the insured's death. However, it was conceded that the injuries which caused the death were external and violent, and the issue was whether death occurred "through accidental means."

It was stipulated that the jury be discharged. Both sides moved for a directed verdict, and the court ruled in favor of the appellee. Appellant concedes that "there were no controverted questions of fact, and the questions involved were purely ones of law"; but it is urged that the court erred in denying appellant's motion for a directed verdict in its favor and in entering judgment for the appellee, because, under the circumstances, there is no presumption of law that death occurred through accidental means. Appellee, on the other hand, maintains that the uncontradicted evidence and admissions in the pleadings established a prima facie case, as ruled by the trial court; "that the evidence having established death through external and violent means as the direct result of gunshot wounds not self-inflicted, the legal presumption that such death was therefore due to accidental means squarely applies, and there being no evidence on the part of defendant appellant to rebut this presumption * * * the appellee's motion for directed verdict and judgment was properly granted."

The ruling on the motion for directed verdict was correct.

In Mutual Life Ins. Co. of New York v. Sargent (C. C. A. 5) 51 F.(2d) 4, 5, the court said: "Upon the matter of proof it is the law, though there are one or two authorities contra New York Life Ins. Co. v. Ollich (C. C. A.) 42 F.(2d) 399, 401, that while the burden is upon plaintiff in cases of this kind to prove death resulting from external, violent and accidental means, proof without more that insured was killed by another raises the presumption that death was accidental, and makes out a prima facie case in the absence of evidence to the contrary. Smith v. New York Life Ins. Co. (C. C. A.) 31 F.(2d) 281; Nerrow v. Pacific Mutual Life Ins. Co. (Mo. App.) 294 S. W. 97, 99; Withers v. Pacific Mutual Life Ins. Co., 58 Mont. 485, 193 P. 566; Aetna Life Ins. Co. v. Rustin, 151 Ky. 103, 151 S. W. 366; Jones v. U. S. Mutual Acc. Ass'n, 92 Iowa, 652, 61 N. W. 485; Aetna Life Ins. Co. v. Little, 146 Ark. 70, 225 S. W. 298."

"The burden of proof was on appellant to show that the death of the insured resulted from bodily injury effected through external, violent, and accidental means. It being admitted by the pleadings that the insured was killed by another, it necessarily follows that his death was caused by external and violent means. Without further proof, a presumption arose that death was accidental. 1 C. J. 495." Smith v. Mutual Life Insurance Co. of New York (C. C. A. 5) 31 F.(2d) 280, 281.

"In the absence of evidence to the contrary, the law presumes that Jones the insured was without fault. There was no direct testimony to show that Wade, in firing the shot, had any intent to injure or kill Jones. Then the presumption which the law raises where one had been killed by external and violent means, as in this case, that the injury was the result of accident, will prevail until overcome by evidence. Citing cases." Jones v. Accident Association, 92 Iowa, 652, 61 N. W. 485, 487.

"The plaintiff made out a prima facie case when she introduced proof establishing the death of Martin the insured by external and violent means. Citing cases. The proof of death by such means raised a presumption that the insured's death was accidental, and this presumption was not destroyed by the fact that her evidence showed that Martin was `killed' by Dr. Brannon." Martin v. Mutual Life Ins. Co., 106 W. Va. 533, 146 S. E. 53, 56.

See, also, Killingsworth v. ?tna Life Ins. Co. (D. C.) 49 F.(2d) 399, same case on appeal, ?tna Life Ins. Co. v. Hagemyer (C. C. A. 5) 53 F.(2d) 636, certiorari denied 285 U. S. 542, 52 S. Ct. 314, 76 L. Ed. 934; Withers v. Pacific Mut. Life Ins. Co., 58 Mont. 485, 193 P. 566; Schmohl v. Ins. Co. (Mo. App.) 177 S. W. 1108; Id., 266 Mo. 580, 182 S. W. 740; Id. (Mo. App.) 189 S. W. 597 and Id. (Mo. Sup.) 197 S. W. 60; Carpenter v. Iowa State Traveling Men's Ass'n, 213 Iowa, 1001, 240 N. W. 639; Linnen v. Commercial Casualty Co., 152 S. C. 450, 150 S. E. 127; and Tabor v. Commercial Casualty Ins. Co., 104 W. Va. 162, 139 S. E. 656, 657, 57 A. L. R. 968, 971, where it is said: "The rule of law is well established, that in the absence of a provision in an accident policy relieving the insurer in such case, the latter is liable where the insured is intentionally killed or injured by another, and the injury is not the direct result of misconduct or an assault by the insured, but is unforeseen in so far as he is concerned, and that the injury so inflicted is accidental within the meaning of such policy. Citing cases."

See, also, Missouri State Life Ins. Co. v. Roper (C. C. A. 5) 44 F.(2d) 897.

With the rule that the right of recovery only exists where "the injury is not the direct result of misconduct or an assault by the insured," we are not concerned, because in the case at bar there was no such proof or any evidence at all as to the circumstances surrounding the insured's death; simply the bare admission that the insured was killed by a certain third person.

It is also contended that "the court erred in denying appellant's motion that the court rule as a matter of law that if there was a recovery permitted the appellee, it be limited to the pro-rata amount as provided by Clause 17 of the policy of insurance." That clause is as follows: "17. If the insured shall carry with another company, corporation, association, or society other insurance covering the same loss without giving written notice to the Company, then in that case the Company shall be liable only for such portion of the indemnity promised as the said indemnity bears to the total amount of like indemnity in all policies covering such loss, and for the return of such part of the premium paid as shall exceed the pro-rata for the indemnity thus determined."

Chapter 124 of the Laws of Washington, 1929, pp. 291, 292, relating to accident and health insurance, among others, provides that:

"15. * * * No such policy shall be so issued or delivered which contains any provision * * * (2) limiting the amount of indemnity to a sum less than the amount stated in the policy and for which the premium has been paid; * * * unless such provisions which are hereby designated as optional standard provisions, shall be in the words and in the order in which they are hereinafter set forth, but the insurer may at its option omit from the policy any such optional standard provision. Such optional standard provisions if inserted in the policy shall immediately succeed the standard provisions named in this section. * * *

"(2) An optional standard provision relative to reduction of the amount of indemnity to a sum less than that stated in the policy as follows:

"17. If the insured shall carry with another company, corporation, association or society other insurance covering the same loss without giving written notice to the insurer, then in that case the insurer shall be liable only for such portion of the indemnity promised as the said indemnity bears to the total amount of like indemnity in all policies covering such loss, and for the return of such part of the premium paid as shall exceed the pro rata for the indemnity thus determined."

"Although provisions for prorating in case of other insurance are common in fire insurance, provisions of this character seem to have found their way into accident insurance only within recent years." Couch on Insurance, vol. 7, ß 1879.

At the time of his death the insured carried another accident policy in the Sentinel Life Insurance Company. Both policies covered loss of life by accidental means. The learned trial court held that there could not be an apportionment of a loss arising out of the death of a human being, and declined to give effect to section 17 of the policy on the prorating basis. We are of opinion that this was error. The Washington statute expressly authorizes the insertion of section 17 in the policy, and since it is not against public policy it is as binding upon the contracting parties as any other provision of the contract. The meaning of the section is plain, and we can see no good reason why it should not be...