Andrews v. U.S. Cas. Co.

• Decision Date: 31 May 1913
• Parties: ANDREWS v. UNITED STATES CASUALTY CO.
• Court: Wisconsin Supreme Court

154 Wis. 82

142 N.W. 487

ANDREWS

v.UNITED STATES CASUALTY CO.

Supreme Court of Wisconsin.

May 31, 1913.

Appeal from Circuit Court, Brown County; Samuel D. Hastings, Judge.

Action by Mary C. Andrews against the United States Casualty Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded for new trial.

Action on a policy of casualty insurance.

In case of death liability was conditioned upon the same being caused “solely through external, violent and accidental means,--intentional self-inflicted injury and loss or injury resulting from, or contributed to, directly or indirectly, wholly or partially, by disease or by any means or act which, if used or done by the assured while in possession of all mental faculties, would be deemed intentional or self-inflicted” being expressly excepted, and it being stipulated that any untrue statement made in the schedule of statements upon which the policy was based would render it void. Among such statements was one to the effect that at the time of the application the assured was “free from any intemperate habit.” The deceased came to his death from a bullet wound inflicted while he and one Cora Edwards, his mistress, were alone together in her room in a house of ill-repute kept by her. Two shots were fired, only one taking effect. She claimed, immediately after the occurrence,that she did the deed. Later, and upon the trial, she claimed that he shot himself. He said, immediately after the shooting, that she did it and later made a conflicting statement. There was evidence tending to show that he was much addicted to the use of intoxicants for a considerable period immediately prior to taking out the policy. The jury found that the shooting was by Cora Edwards, and that the assured died from an injury intentionally inflicted by her.

Jeffris, Mouat, Oestreich & Avery, of Jamesville, for appellant.

Martin, Martin & Martin, of Green Bay, for respondent.

MARSHALL, J.

The proposition of first importance, presented by appellant's counsel, is that the court erred in not granting judgment of no cause of action, because intentional shooting of an assured by another is within the exceptions to liability mentioned in the policy.

[1] The question thus raised turns on the construction of the policy. The language of it is quite peculiar and, manifestly, ambiguous. The words “intentionally inflicted” are plain. They were clearly intended to cover a case of suicide while sane. Instead of the term often used to cover self-destruction under any circumstances, such as “death by his own hand, sane or insane,” so as to cover all cases of suicide, we find the quoted words followed by “or injury resulting from,” etc., or by any means or act which if used or done by the assured, while in the possession of all mental faculties would be deemed intentional or self-inflicted.”

It may be admitted that such language might reasonably be regarded as intended to cover homicidal death, and to avoid the effect of the rule that such events are within the meaning of “accidental” as used in the policy. But it is quite as reasonable construction of the words to regard them as merely intended to cover cases of self-inflicted injuries while insane, and the whole together but another way of phrasing an exception from liability in case of self-inflicted injury or suicide, sane or insane.

[2] It is a cardinal rule, in solving ambiguity of the sort under consideration, that the language should be construed somewhat strictly against the assurer, and that, of two reasonable meanings which are fairly balanced, the one supporting rather than the one defeating liability should be taken. It seems that, guided by that rule, the clause in question was not intended to cover homicide, but was intended to cover suicide while insane.

[3][4] The case at the best for respondent was exceedingly close on the question of whether the death was by suicide or by homicide. The evidence was so strong in favor of the former that any substantial error bearing on the subject unfavorably to appellant, where the burden rested to establish the theory of suicide, could hardly have been otherwise than so prejudicial that, had it not occurred, the verdict might probably have been that the deed was caused by Ebeling himself, bringing the case within the rule as regards harmful error requiring a reversal in the interests of justice. Oborn v. State, 143 Wis. 249, 280, 126 N. W. 737, 31 L. R. A. (N. S.) 966. Therefore some assignments of error, presented for consideration as to rulings on evidence, are clearly vital to the judgment.

[5] Complaints are made because testimony was permitted of what was said by Ebeling and Cora Edwards, immediately after the shooting, when others came upon the scene. We will pass such complaints by merely remarking that they relate to matters so clearly connected with the occurrence of the homicide or suicide, whichever it was, as to spring from it directly and spontaneously, as it were, and be characterized thereby and rendered matters of res gestæ. It is only things which immediately or so nearly arise out of the main fact as to be, to some extent, environed in and illustrate it, which are within the field of res gestæ.

[6] What has been said emphatically condemns the rulings of the trial court in permitting evidence from several witnesses of the statements made by Ebeling, after he was removed from the scene of the occurrence, respecting the cause of his death, tending to show that it was produced by homicidal means, Cora Edwards being the guilty party. All such statements, made after such removal and while Ebeling was under treatment for his injury, were clearly outside the field of res gestæ and in the field of self-serving declarations. The testimony came, in part, from witnesses of such character that it may very likely have had controlling weight with the jury, under all the circumstances. There is no need to discuss such evidence in detail. There was considerable of it,--some relating to statements made some time after the excitement of the shooting was all over and the wounded man was in the hospital. None of it was safely res gestæ, except evidence of the statements made at the scene of the shooting.

[7][8] Evidence was permitted that, some two years before the occurrence, Cora Edwards admitted to have tried to take Ebeling's life by shooting, and threatened to do it later, and that, shortly thereafter, she repeated such statements on an occasion of having a quarrel with him. There was no possible connection shown between such events, if they occurred, and the one under investigation. No reason is perceived why the evidence was permissible, while its prejudicial character is quite apparent.

[9] Complaint is made because the court permitted evidence to be given of a telephone conversation with Cora Edwards while Ebeling was in the hospital, in which she was said to have admitted having done the shooting.Clearly, if that were proper at all, it was for the purpose of discrediting the evidence of the Edwards woman as regards Ebeling having shot himself. Counsel for respondent seem to have appreciated that and presented it regularly. It was a matter of great difficulty, under the circumstances, to use that evidence for a legitimate purpose and prevent it from having an illegitimate effect. Whether the former was accomplished without the latter occurring is not entirely clear. We will pass the subject with what has been said,...