Abe Jacobs v. Loyal Protective Insurance Co.

• Decision Date: 07 May 1924
• Citation: 124 A. 848,97 Vt. 516
• Parties: ABE JACOBS v. LOYAL PROTECTIVE INSURANCE COMPANY
• Court: Vermont Supreme Court

124 A. 848

97 Vt. 516

ABE JACOBS v. LOYAL PROTECTIVE INSURANCE COMPANY

Supreme Court of Vermont

May 7, 1924

May Term, 1923.

ACTION OF CONTRACT upon an accident and health insurance policy. Answer, statement of facts upon which defendant claims there was no liability. Trial by jury at the June Term, 1922 Orange county court, Willcox, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case.

Judgment affirmed.

Edward H. Deavitt for the defendant.

Hugh W. Hastings and Hale K. Darling for the plaintiff.

Present WATSON, C. J., POWERS, TAYLOR, SLACK, and BUTLER, JJ.

OPINION

TAYLOR

The complaint counts upon an accident and health insurance policy. The answer is a statement of facts upon which the defendant claimed there was no liability. Trial was by jury with a verdict and judgment for the plaintiff. At the close of the evidence the defendant moved for a directed verdict. The questions first argued arise on exceptions saved to the overruling of this motion.

The injury for which the plaintiff is claiming indemnity was a broken collar bone suffered in an encounter with one Trombly. Subject to the "conditions, limitations and provisions" contained in the policy the defendant promised among other things to indemnify the plaintiff against disability from injury or sickness, not exceeding fifty-two weeks duration, resulting wholly from causes originating after certain specified times, at the rate of $ 20 per week in case of total disability and half that amount in case of partial disability. Among such conditions and provisions material here are the following:

"A. To entitle the insured or the beneficiary to indemnity an injury must be independent of all other causes * * * and except in case of accidental drowning, the result of external, violent and accidental means. * * * Statement of facts in all proofs submitted shall be conclusive upon the claimant."

"F. Indemnity shall not be payable for injuries, or death resulting therefrom, intentionally inflicted upon himself by the insured; * * * or for voluntary exposure to unnecessary dangers; or for injuries or death received while fighting or wrestling; * * * or while engaged or as a result of having been engaged in any unlawful act."

"G. The company shall not be liable for both sickness and accident indemnity for the same period of time."

By several grounds of the motion the defendant relies upon these provisions as the basis of a peremptory instruction. Briefly summarized, those requiring attention are these:

1. That plaintiff has failed to establish liability on account of any provision of the policy entitling him to indemnity.

2. That the circumstances of plaintiff's injury relieve the defendant from liability under condition F of the policy, since (a) the injury was received while fighting and wrestling; (b) plaintiff voluntarily exposed himself to unnecessary danger; (c) the injury was "intentionally inflicted" by the plaintiff upon himself, in that he started the fight by first hitting Trombly; (d) the injury was received while engaged in an unlawful act.

3. That proofs submitted show that the plaintiff's injuries were the result of acts in violation of condition F of the policy, which concludes a recovery.

Two other grounds are specified but they need not be noticed, as the questions relied upon are not raised in the defendant's answer.

The circumstances attending the injury as disclosed by the evidence viewed in the light most favorable to the plaintiff were as follows: The plaintiff had sold some cows to Trombly taking his note secured by a lien on the cows. Trombly taking his note secured by a lien on the cows. Trombly called at the plaintiff's place of business--a livery stable--in relation to this matter. In course of the negotiations Trombly asked the plaintiff to take the cows back, which the latter declined to do, giving as a reason that they were not in condition at that time and there was no sale for them. Both parties became excited and got to "talking fast and calling each other names." Trombly called the plaintiff a vile name, a liar, and a thief, and said if he had got ahead of a d--d Jew he was glad of it. The plaintiff said he would not be insulted in his own barn and ordered Trombly off his premises, threatening if he didn't leave to hit him with a broom with which the plaintiff had been sweeping when Trombly came in. Trombly retorted that there wasn't a Jew big enough to put him out. Thereupon, the plaintiff hit Trombly on the head with the broom. The latter started to leave the barn and the plaintiff returned to his sweeping, whereupon Trombly came back and taking the plaintiff by surprise pulled the broom out of his hands, threw him on the floor, jumped on him, and was holding him down on the floor when a bystander interfered and stopped the encounter. It was later discovered that the plaintiff's collar bone was broken. There was no evidence of what, if any, resistance the plaintiff offered to this attack. It appeared that Trombly, who weighed only about 130 pounds, easily got the better of the plaintiff in such scuffle as was had, and that he was not injured by the blow from the broom.

It is important to determine at the outset where the burden of proof rests on the questions presented by the motion. The court ruled subject to exception that the burden was upon the defendant to establish the facts which would bring the case within one of the conditions relied upon. This is the generally accepted rule. While it is held in some jurisdictions that in an action on an insurance policy the burden is on the plaintiff to prove that his injury was not due to a risk or cause which is specifically excepted in the policy, in most jurisdictions the holdings are to the contrary. 33 C. J. 111; note, 50 L. R. A. (N. S.) 1006; note, Ann. Cas. 1916B, at p. 231; 14 R. C. L. 1437. The generally accepted rule is that the burden of proof in such actions is on the defendant to show by a fair preponderance of the evidence that the injury for which recovery is sought resulted from a cause which, by the terms of the policy, would relieve the insurer from liability. Respecting matters within an exception of the policy, the rule has been applied where the issue was whether the injury resulted from lack of ordinary care or from voluntary exposure to unnecessary danger (Noyes v. Commercial Trav. Acci. Assn., 190 Mass. 171, 76 N.E. 665; Garcelon v. Commercial Trav. Acci. Assn., 195 Mass. 531, 81 N.E. 201, 10 L. R. A. [N. S.] 961; National Life Ins. Co. v. Fleming, 127 Md. 179, 96 A. 281; Rowe v. United Com. Trav. Assn., 186 Iowa 454, 172 N.W. 454, 4 A. L. R. 1235; Archibald v. United Com. Trav., 117 Me. 418, 104 A. 792; Fidelity & Casualty Co. v. Sittig, 181 Ill. 111, 54 N.E. 903, 48 L. R. A. 359); whether the injury was received while under the influence of intoxicating liquor (Brotherhood of Painters v. Barton, 46 Ind.App. 160, 92 N.E. 64; Bowers v. Great Eastern Casualty Co., 260 Pa. 147, 103 A. 536; Thompson v. Bankers' Mut. Cas. Ins. Co., 128 Minn. 474, 151 N.W. 180, Ann. Cas. 1916A, 277); whether the injury was intentionally inflicted within an exception of the policy (Allen v. Travelers' Protective Assn., 163 Iowa 217, 143 N.W. 574, 48 L. R. A. [N. S.] 600; note to Ryan v. Continental Casualty Co., 48 L.R.A. 529; Continental Casualty Co. v. Cunningham, 188 Ala. 159, 66 So. 41, L. R. A. 1915A, 538); whether the insured's death resulted from suicide (numerous cases collected in note 50 L. R. A. [N. S.] 1008); whether the injury occured in consequence of the violation of law ( Brahmsteadt v. Mystic Workers, 152 Wis. 580, 140 N.W. 354; Sovereign Camp Woodmen v. Pritchett, 203 Ala. 33, 81 So. 823; Cluff v. Mut. Ben. Life Ins. Co., 95 Mass. 308, 13 Allen 308).

The plaintiff in an action on a policy of accident insurance has the burden, of course, of showing that the injury for which indemnity is sought is within the general terms of the policy. But, where an accident company seeks to avoid liability because of a specific exception to its general liability under the policy and on the ground that the accident and injury were within such exception, the burden of proof rests upon the company to show that the facts bring the case within the exception--in other words, that the injury was caused by a breach of the condition. It is generally held to be an affirmative defense which the defendant is required to allege and prove. On this principle it was held in Walcott v. Metropolitan Life Ins. Co., 64 Vt. 221, 24 A. 992, 33 A. S. R. 923, that when a life insurance company seeks to avoid its policy upon the ground that the death of the insured was caused by his own act, the evidence must affirmatively show that fact. The rule is recognized in Poole v. Massachusetts Mut. Acci. Assn., 75 Vt. 85, 53 A. 331, where the claim was that the insured did not exercise due diligence for his personal safety as required by the policy, and it was held that the defense was not available because not specially pleaded. For additional cases to the same effect, see Patterson's Admr. v. Modern Woodmen, 89 Vt. 305, 317, 95 A. 692. The statute relating to simplified pleading in actions on insurance policies (G. L. 1801) has not changed the substantive rights of the parties, including the burden of proof. Patterson's Admr. v. Modern Woodmen, supra, at p. 312; Hersey v. Northern Assurance Co., 75 Vt. 441, 56 A. 95; Morrill's Admx. v. Catholic Order of Foresters, 79 Vt. 479, 487, 65 A. 526. The defendant recognizes but misapplies the doctrine of these cases.

The burden respecting the matters relied upon as a basis of the motion being upon the defendant, the controlling question is whether on all the evidence there is any room for...