Aetna Life Ins. Co. v. Rustin

• Decision Date: 10 December 1912
• Citation: 151 Ky. 103,151 S.W. 366
• Parties: ÆTNA LIFE INS. CO. et al. v. RUSTIN.
• Court: Kentucky Court of Appeals

151 S.W. 366

151 Ky. 103

ÆTNA LIFE INS. CO. et al. v. RUSTIN.

Court of Appeals of Kentucky.

December 10, 1912

Appeal from Circuit Court, Jefferson County, Common Pleas Branch First Division.

Action by Grace H. Rustin against the Ætna Life Insurance Company and others. Judgment for plaintiff, and defendants appeal. Affirmed.

Marion W. Ripy and Bennett H. Young, both of Louisville, for appellant Casualty Co.

Fred Forcht, Jr., of Louisville, and Edwin A. Jones, of New York City, for appellant Fidelity & Casualty Co.

Trabue Doolan & Cox, of Louisville, and William BroSmith and R. C Dickenson, both of Hartford, Conn., for appellant Travelers' Ins. Co.

Kohn, Bingham, Sloss & Spindle, of Louisville, for appellant Ætna Life Ins. Co.

T. J. Mahoney, of Omaha, Neb., and Wm. Marshall Bullitt and Bruce & Bullitt, all of Louisville, for appellee.

HOBSON C.J.

These suits were brought by Grace H. Rustin against appellants to recover on certain policies issued by them on the life of her husband, Dr. Frederick Rustin of Omaha, Neb. The policies insured against death "resulting directly and independently of all other causes from bodily injuries effected solely through external, violent and accidental means." The defendants denied the allegations of the petition, and pleaded, in substance, that Dr. Rustin either killed himself or procured another to kill him. There was a trial before a jury which resulted in a judgment in favor of the plaintiff. The defendants appeal.

1. It is urged that the appellants had the burden and were entitled to the concluding argument, but they did not assert this at the opening of the trial, and nothing was said about it until the evidence had all been introduced, and the court had given the jury his instructions. The defendants then asked to be allowed to make the concluding argument. The motion was properly overruled. Under the pleadings, if no evidence had been given on either side, the plaintiff would have been defeated. Civil Code, § 526.

2. The court did not err in refusing to instruct the jury peremptorily to find for the defendants at the conclusion of the plaintiff's evidence. If the evidence for the plaintiff was true, a prima facie case was made out for her. Hutchcraft v. Travelers' Ins. Co., 87 Ky. 300, 8 S.W. 570, 10 Ky. Law Rep. 260, 12 Am. St. Rep. 484; Campbell v. Fidelity & Casualty Co., 109 Ky. 661, 60 S.W. 492, 22 Ky. Law Rep. 1295. Her proof showed that her husband was found on the porch of his residence shot in the abdomen, and that he said when found that a man had shot him. It is not presumed on these facts that he procured a man to shoot him, or that he had done anything wrong which brought on the shooting.

3. There was no substantial error in the introduction of evidence in rebuttal. The trial court has a discretion in this matter and we do not see that it was abused.

4. The court by its instructions clearly submitted to the jury the issue. By the first instruction he told the jury as follows: "If the jury believe from the evidence that the wound which caused the death of Frederick Rustin was inflicted accidentally, either by himself or by another, or that it was inflicted intentionally by another without the consent or procurement of Frederick Rustin, then the law is for the plaintiff." The second instruction is in these words: "But if the jury believe from the evidence that Frederick Rustin committed suicide, sane or insane, or that the wound which caused his death was inflicted intentionally by another with the consent or procurement of Frederick Rustin, then the law is for each of the four defendants named in the foregoing instruction and the jury should so find."

These instructions aptly submitted to the jury the case as made by the evidence as to the first three appellants. The policy issued by the Travelers' Insurance Company is as follows:

"The Travelers' Insurance Company of Hartford, Connecticut, in consideration of the warranties hereinafter set forth, and of twenty-five dollars, does hereby insure Frederick Rustin of Omaha, county of Douglas, state of Nebraska, under classification preferred (being a physician by occupation) for the term of twelve months from September 13th, 1904, against bodily injuries effected through external, violent and accidental means, as specified in the schedule below. The principal sum of this policy in the first year is $5,000.00, with 5% increase annually for ten years amounts to $7,500.00. Each consecutive full year's renewal of this policy shall add 5 per cent., to the principal sum of the first year until such additions shall amount to 50 per cent., and thenceforth so long as this policy is maintained in force the insurance shall be for the original sums plus the accumulations theretofore granted.

"Schedule of Indemnities. [Here follows schedule.]

"In event of death the principal sum insured shall be paid to Grace H. Rustin [the beneficiary] if surviving, otherwise to the executors, administrators, or assigns of the insured.

"Weekly Indemnity. [Here follows provisions as to weekly indemnity.]"

The policy then contains under the head of double payments and special payments provisions on these subjects. These are followed by other clauses on the second page of the policy limiting the liability of the company in certain contingencies. One of these clauses is as follows: "In the event of death, loss of limb or sight, or disability caused by gas, vapor or poison, or by injuries intentionally inflicted upon the insured by any other person, sane or insane (except assaults committed for purpose of burglary or robbery), the company shall pay but one-tenth of the amount otherwise payable for bodily injuries covered hereby, anything to the contrary in this policy notwithstanding."

As to the Travelers' Insurance Company the court instructed the jury as follows:

"(a) If the jury believe from the evidence that the wound which caused the death of Frederick Rustin was inflicted accidentally, either by himself or by another, or that it was inflicted intentionally by another, without the consent or procurement of Frederick Rustin, in an assault committed by such other person, if any, for the purpose of burglary or robbery, then the law is for the plaintiff as against the Travelers' Insurance Company, and the jury should award

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