Allen v. Travelers' Protective Ass'n of Am.
Decision Date | 25 October 1913 |
Parties | ALLEN v. TRAVELERS' PROTECTIVE ASS'N OF AMERICA. |
Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Linn County; Milo P. Smith, Judge.
Action upon a certificate of accident insurance issued by the defendant upon the life of John T. Carmody in favor of his wife, Mary E. Carmody, as beneficiary. The action is brought by a trustee for the beneficiary. For the purpose of our discussion, the beneficiary will be referred to as the plaintiff. There was a trial to a jury and a verdict and judgment for the plaintiff for the amount of the certificate, with interest. The defendant appeals. Affirmed.
Dawley & Wheeler and A. T. Cooper, all of Cedar Rapids, for appellee.
The certificate in question provided for accident insurance only. It provided for the payment of $5,000 in case of the death of the insured by accident. The deceased died from a gunshot wound on August 7, 1909. Such wound was inflicted upon him on May 24, 1909. He received the wound while engaged in an encounter with a burglar in his home at about 1 o'clock in the morning. The following from appellant's brief is a sufficient preliminary statement of the circumstances attending the inflicting of the injury which resulted in the death of the insured:
The defendant is a mutual association and its contract is incorporated in its constitution and by-laws and in certain printed “rules” which were indorsed upon the back of the certificate of membership. Section 2 of article 9 of the constitution provides as follows: “Sec. 2. $5,000 shall be paid to the beneficiary named in the certificate of any deceased member in good standing in case of death by accident.” If full effect were given to this provision according to its terms, there could be no question as to plaintiff's right of recovery.
As modifying the quoted provision, the defendant pleaded certain “rules” of the defendant association which were indorsed upon the back of the certificate of membership. These rules are as follows: “That this association shall not be liable, in case of injuries, fatal or otherwise, inflicted by a member in good standing on himself while sane or insane, or injuries of which there are no visible mark upon the body (the body itself not being deemed such a mark in case of death), or in case of injury, disability or death happening to the member while in any degree under the influence of intoxicating liquors or narcotics, or by reason of and in consequence of the use thereof, or death or disability when caused wholly or in part by any bodily or mental infirmity or disease, dueling, fighting, wrestling, war or riot, injury causing death or disability resulting from an altercation or quarrel, voluntary overexertion (unless in a humane effort to save human life), voluntary or unnecessary exposure to danger or to obvious risk of injury, or by intentional injuries causing death or disability inflicted by the member or any other person upon him; injury causing death or disability received either while avoiding or resisting arrest, while violating the law or violating the ordinary rules of safety of transportation companies, or in case of injury fatal or otherwise, caused by disease of epilepsy, paralysis, apoplexy, sunstroke, freezing, fits, lumbago, vertigo or sleepwalking, voluntary or involuntary conscious or unconscious inhalation of any gas or vapor, injury fatal or otherwise, resulting from any poison or infection or the result of an insect bite or sting, or from anything accidentally or otherwise taken, administered, absorbed or inhaled, disease, death or disability resulting from medical or surgical treatment; operation made necessary by the particular injury for which claim is made and occurring within six calendar months from date of accident excepted.”
The particular “rule” upon which defendant relied is indicated in the foregoing quotation by italics. The contention was that the injury which caused the death of the insured was intentionally inflicted upon him by the burglar and that the defendant was therefore not liable.
In instructing the jury, the trial court laid upon the defendant the burden of proving that the injury in question was intentionally inflicted by the burglar. It also instructed the jury that a presumption would obtain that the injury was not intentionally inflicted unless it was otherwise made to appear from all the evidence in the case. The principal assignments of error concentrate upon the proposition here involved.
1. Appellant's first complaint is that the trial court erred in its instructions in putting upon the defendant the burden of proving that the injury in question was intentionally inflicted by the burglar.
[1] It appears conclusively from the evidence on both sides that the injury was not inflicted by Carmody himself. The injury therefore was accidental as to Carmody, even though it were intentional on the part of the burglar. This is the uniform holding of the authorities. Jones v. U. S. Mutual, 92 Iowa, 652, 61 N. W. 485;Hutchcraft v. Insurance Company, 87 Ky. 300, 8 S. W. 570, 12 Am. St. Rep. 484;Button v. Association, 92 Wis. 83, 65 N. W. 861, 53 Am. St. Rep. 900.
If we could ignore the exceptions enumerated in the “rules” as above quoted, there could be no doubt of the plaintiff's right of recovery as for death resulting from accidental injury. Jones v. U. S. Mutual, supra. If the plaintiff must fail, it is not because she has failed to show that the death resulted from accident but because by the terms of the insurance contract such accident was excepted from its operation. Under the “rules,” not all accidental injuries are insured against. The exceptions are enumerated. These exceptions relate mainly, not to the nature or form of particular injuries, but to the immediate circumstances attending the infliction of the injury. For instance, accidental injuries occurring while the insured is under the influence of intoxicating liquors or while wrestling are excepted from the operation of the policy. In such a case it would not be necessary for the defendant to deny the accidental character of the injuries. It would be a sufficient defense to show that they occurred under circumstances excepted by the policy. So in the case before us. Even though the injury was accidental as to the insured, yet, if it was intentionally inflicted by the burglar, it was excepted from the operation of the policy, and the trial court so instructed the jury. Was the burden properly laid upon the defendant to show that the injury in question was intentionally inflicted?
[2] We have heretofore held that, where death is shown to have resulted from an external and visible injury, a presumption will obtain that it was not intentionally inflicted either by the insured or by another person. Caldwell v. Association, 136 N. W. 678;Taylor v. Association, 110 Iowa, 621, 82 N. W. 326;Carnes v. Association, 106 Iowa, 281, 76 N. W. 683, 68 Am. St. Rep. 306;Jones v. U. S. Mutual Association, 92 Iowa, 652, 61 N. W. 485.
[3] It is perhaps inaccurate in a verbal sense to say that the burden of proving...
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