Allen v. Travelers' Protective Ass'n
| Citation | 143 N.W. 574,163 Iowa 217 |
| Parties | WM. H. ALLEN, Trustee for Mary Carmody, Appellee, v. TRAVELERS PROTECTIVE ASSOCIATION OF AMERICA, Appellant |
| Decision Date | 25 October 1913 |
| Court | Iowa Supreme Court |
Appeal from Linn District Court.--HON. 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.
Tourtellot & Donnelly and Sullivan & Sullivan, for appellant.
Dawley & Wheeler and A. T. Cooper, 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:
That on the 7th day of August, 1909, John Thomas Carmody died by reason of injuries received at the hands of a burglar on the 24th day of May, 1909. That at the time of the injury Mr. Carmody was mayor of the city of Cedar Rapids. That on that date and about 1 to half past 1 in the morning a burglar entered the home on Fifth avenue and the sleeping room of Mr. and Mrs. Carmody. That the home of Mr. Carmody was a two-story dwelling, and he and Mrs. Carmody were sleeping in one of the upstairs rooms that had an opening into a hallway and a window leading onto a porch on Fifth avenue. The bed in which they were sleeping was a little to the side of the door entering from the hall and was so that you could pass around the foot of the bed and upon either side of it. That about 1 o'clock on the morning of the 24th cries were heard from the Carmody home appealing for help and indicating that trouble was going on in the house. Those living in close proximity rushed across and found Mr. Carmody lying upon a sofa in one of the downstairs rooms. That there was blood on his nightrobe over his stomach. Mrs. Carmody and her mother were in the room with Mr. Carmody at the time. Police arrived within a few moments and soon thereafter Dr. Rumhl. A bullet wound was found on Mr. Carmody that went just through the outer layer of the muscle of the stomach and lodged a little above the navel. Within a short time he was taken to the hospital and remained there until his death on the 7th day of August following. Mr. Carmody stated to Mrs. Zaleska, 'The coward got me here;' and he put his right hand over the end of the rib. There was a broken jardiniere in the hall at the base of the stairway. Mrs. Carmody said she was in bed when the burglar came and as he came up to the bed she awoke and said 'Jack,' and the burglar said, 'Not another word at your peril.' That in the meantime Mr. Carmody got up and began scuffling with the burglar and Mrs. Carmody went out the window on top of the porch and screamed for help and in the meantime shooting took place. It is further shown by the undisputed testimony that quite a scuffle ensued in the bedroom while Mrs. Carmody was out on top of the porch calling for help. That Mr. Carmody grappled the burglar who was attempting to get to the stairway or Mr. Carmody was pushing him out into the hall, for it is shown that while in the hall at the head of the stairs a shot occurred, and two other shots took place within a short time thereafter as the burglar was either on the stairway or descending. Marks of the bullet were found on the wall. It is unquestioned the shots fired were from a revolver in the hands of the burglar. Mr. Carmody did not have in his hands a weapon of any kind.
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.
I. 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.
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?
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, ...
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