Ashley v. Agric. Life Ins. Co. of Am.

• Decision Date: 03 January 1928
• Docket Number: No. 62.,62.
• Citation: 241 Mich. 441,217 N.W. 27
• Parties: ASHLEY v. AGRICULTURAL LIFE INS. CO. OF AMERICA.
• Court: Michigan Supreme Court

241 Mich. 441

217 N.W. 27

ASHLEY

v.AGRICULTURAL LIFE INS. CO. OF AMERICA.

No. 62.

Supreme Court of Michigan.

Jan. 3, 1928.

Error to Circuit Court, Genesee County; Joseph B. Collins, Judge.

Action by Emma Ashley against the Agricultural Life Insurance Company of America. Judgment for plaintiff for part of sum demanded, and she brings error. Reversed and remanded.

Argued before the Entire Bench except SNOW and McDONALD, JJ.Neithercut & Neithercut, of Flint, for appellant.

Selwyn A. Lambert, of Bay City (Gault & Parker, of Flint, of counsel), for appellee.

CLARK, J.

Plaintiff, Emma Ashley, was beneficiary in a life insurance policy for $2,000 issued to her son, Harold Ashley, by defendant. The insured died on or about November 20, 1926. For this defendant admitted liability and its willingness to pay. The controversy relates to what is called a double indemnity rider, attached to the policy, which provides that for an added premium, which was furnished, the defendant was to pay an additional $2,000 in the event of the death of the insured ‘resulting from bodily injury, sustained and effected directly through extennal, violent and accidental means (murder or suicide, sane or insane, not included) exclusively and independently of all other causes, provided such death shall occur within ninety (90) days from the date of the accident.’

Insured and a companion were camped for hunting deer at Moran in Mackinac county. On Friday, November 19, 1926, with a guide, they left camp and drove nearly 20 miles to some hardwooded upland, where they left the car and separated to hunt, insured, with sufficient clothing, following the track of a deer. They were to meet at the car later in the day. Insured did not return. The weather was pleasant, but in the afternoon turned cold, with wind and snow. That night his companions searched by following his tracks nearly three miles to the edge of a large swamp where it became evident he had become lost. His tracks led in all directions in the snow ‘like a lost man would do.’ He had attempted unsuccessfully there to kindle a fire. Search continued aided by woodmen and state troopers. Insured had wandered into the swamp and had walked about there and on small patches of upland therein. On the Monday following his body frozen stiff was found over a log in the swamp, his feet, his hands, and a part of his head frozen into the thin ice that covered the swamp.

Appellant's statements in the brief that insured became lost and that he ‘came to his death by the exposure he was subjected to and the bitter cold weather’ are approved by appellee. Both sides requested directed verdict. Plaintiff had judgment on directed verdict for $2,000 and interest, not $4,000 and interest, and she brings error.

Insured's becoming lost was not by design, volition or intent. It was not an expected or usual incident of hunting. It was unusual and unexpected, fortuitous. He became lost accidentally. 1 C. J. 390. His death was caused by accidental exposure to storm and frost. Freezing in and of itself is not an accident. Sherman v. Flint Spring Water Ice. Co., 229 Mich. 648, 202 N. W. 936. But if joined with a fortuitous, unusual, unexpected circumstance or event it may constitute an accident. Mauch v. Bennett & Brown Lumber Co., 235 Mich. 496, 209 N. W. 586. Deceased suffered an accidental death. But it is contended that it was not produced through accidental means, or ‘through external, violent, and accidental means.’ These words just quoted were before the court in U. S. Mut. Accident Ass'n v. Barry, 131 U. S. 100, 9 S. Ct. 755, 33 L. Ed. 60, from which we quote:

‘The court properly instructed [the jury] * * * that the term ‘accidental’ was used in the policy in its ordinary, popular sense, as meaning ‘happening by chance; unexpectedly taking place; not according to the usual course of things; or not as expected;’ that if a result is such as follows from ordinary means, voluntarily employed, in a not unusual or unexpected way, it cannot be called a result effected by accidental means; but that if, in the act which precedes the injury, something unforeseen, unexpected, unusual occurs which produces the injury, then the injury has resulted through accidental means.'

We find no better statement of the rule. See notes in 14 A. L. R. 788, 7 A. L. R. 1131, and 8 A. L. R. 231, where many cases are reviewed, and see Tuttle v. Pac. Mut....