Burnham v. Interstate Cas. Co. of New York

• Decision Date: 18 May 1898
• Citation: 117 Mich. 142,75 N.W. 445
• Court: Michigan Supreme Court
• Parties: BURNHAM ET AL. v. INTERSTATE CASUALTY CO. OF NEW YORK.

75 N.W. 445

117 Mich. 142

BURNHAM ET AL. v. INTERSTATE CASUALTY CO. OF NEW YORK.

Supreme Court of Michigan

May 18, 1898

Error to circuit court, Wayne county; William L. Carpenter, Judge.

Action by James K. Burnham and others against the Interstate Casualty Company, garnishee defendant, and Eva Winans principal defendant. There was a judgment for plaintiffs, and the company brings error. Affirmed. Grant C.J., and Hooker, J., dissenting.

James C. Smith, Jr. (Otto Kirchner, of counsel), for appellant.

Elliott G. Stevenson and John D. Conely, for appellees.

GRANT C.J. (after stating the facts).

Two reasons are urged against the judgment: (1) That there was no evidence that Mr. Winans came to his death by external violent, and accidental means; (2) that there was a breach of warranty, in applying for and obtaining the subsequent insurance in the Standard Company, without notice to the defendant.

1. Upon the first point the learned counsel state their contention as follows: "There is no direct evidence of accidental drowning. The undisputed physical facts tell their own story. They say, as we shall presently show, that Mr. Winans may have drowned accidentally; that he may have died of apoplexy; that he may have drowned intentionally. Is it possible that a jury is permitted to guess which of the three admissible hypotheses is true?" They insist that the case falls within the rule in Merrett v. Association, 98 Mich. 338, 57 N.W. 169. No question is raised upon the instructions to the jury, provided there was a question for their determination. The statement of the plaintiff's proofs is therefore essential. There is no evidence of anything unusual in the appearance or conduct of Mr. Winans prior to his death. On his way to the boathouse, he met a friend, who invited him to accompany him to the Windsor races. He declined, but said he was going to take a boat ride, and invited his friend to go with him, saying: "I will get some cigars. We will get a boat, and have a real nice, pleasant time." One Heron was driving over the Belle Isle bridge. He saw Mr. Winans in the boat, and his hat in the water. "Saw him row around to get his hat. He came alongside of it. When he came alongside of the hat, he got over. Witness saw him fall into the water, and he hollered for help. He came up that far [indicating by a gesture] out of the water." On cross-examination he testified as follows: "Witness was just about a quarter of the way over-a little better-when he first saw the man in the water. He was shouting for help. Witness was pretty near the end of the bridge, and going slow, to watch him all the while, when he last saw him. He was in the water, trying to save himself,-trying to get aboard; and the boat went down sideways, and she kept floating away from him. He tried to get to the boat. Witness walked his horses, and stopped occasionally. Drove nearly three-quarters of the length of the bridge, looking at him all the time, not stopping any length of time, only going slow several times. When witness was about three-quarters across the bridge, the man just disappeared under the water. Witness saw him sink once; did not see him come up again." One Kirk testified that he was on the bridge. "Saw the ferryboat coming out of the Belle Isle dock, and a man in a small boat. The boat and the man disappeared all at once. He then saw the rowboat going down the river empty. In a little while, saw the man in the water crying for help. Heard him holler three times. Did not see him make any exertion or effort, only he was hollering for help. Saw his hands like that." One Schultz was at the boathouse. Saw Winans get a boat and start out. Heard the ferryboat give three sharp whistles, meaning to get out of the way. "Winans was then just where the ferryboat has to go through a small cut on what is called the 'Middle Ground.' Witness watched him when the ferryboat passed him, and could see that he was fifty or sixty feet above the ferryboat." After this he paid no more attention. On cross-examination he testified that, "when the ferryboat gave three whistles, Winans struck off up right at the edge of the Middle Ground." One King testified that he saw Mr. Winans "swimming towards the boat, struggling in the water. Did not see him throw his hands up in the air, or anything of that kind. The kind of struggling he was doing was, he seemed as if he was swimming very fast. He swam after the boat. The boat kept getting away from him." One Matson, who was with King, testified that he thought he noticed him swimming towards the boat. These last two witnesses were the ones who rowed out, and towed the body ashore. They found the body floating, with the top of its head above the water. One Fritz testified that he saw the man out in the river. Saw the boat floating away, and two objects floating down the river. Heard the man hollering. Heard him plainly two or three times. Did not hear what he said. He was swimming towards the boat, which was empty. Saw him hold both his hands up twice. The waves seemed to go over him. He was right in behind a ferryboat when he first noticed him,-perhaps 50 feet from the ferryboat. One Benoit testified that he saw the man in the water. Heard him holler three times. Saw him swimming and struggling for all he was worth. He was sure he was swimming 20 minutes, but he looked as if he was swimming for life. One Boroski testified that he "saw the man throw up both hands twice, and he hollered three times. He was swimming towards his boat all the time after he got up and came from under the water. Raised both his hands twice, went down, and, when he came up, swam again." Dr. Newman examined the body shortly after it reached the shore. He testified that: "It presented the ordinary symptoms of a man who died by suffocation. His face was congested. The usual bloody froth and mucous from his lips and nostrils. He had all the appearance of a man who had been drowned. If it was an actual fact that he had been swimming, I should say he died from ordinary drowning. The opinion as to his death, I should think, would depend a great deal upon the fact as to whether he was actually swimming. Assuming that he was swimming towards the boat, screaming for help, and from what I saw of his condition on the dock, I should say that he died, in all probability, from drowning." In reply to a question stating substantially the facts, the witness said, upon cross-examination, "It is possible that Mr. Winans died from apoplexy, or a fit, or from suffocation." Dr. McGraw, another prominent physician, testified, in reply to a question assuming to state all the facts, that he died from drowning, or some sudden seizure, like apoplexy. He also testified that "a man whose abdomen was distended by gases would be liable to float." Dr. Newman had testified that the abdomen was unusually dilated with gases. He also testified that a man taken with apoplexy while in the water would not have much chance to escape, and might die from drowning, notwithstanding he had apoplexy. The testimony of these physicians is not conclusive, and its sole province was to aid the jury in their deliberations. Much stress is laid by counsel for the defendant upon the fact that the boat took in no water when Mr. Winans fell overboard. He might have been reaching for his hat when upon the top or side of a wave, in which event the boat might have righted itself without taking water. We think this circumstance of but little moment.

The learned counsel for the defendant insist that the facts deducible from the above testimony are consistent with three theories of the cause of death, and therefore prove no one of them. These theories are apoplexy, sudden seizure, and suicide. We cannot agree in this conclusion. The testimony does not establish facts to overcome the presumption. Where death may be attributable to suicide, murder, accident, or negligence, the presumption of law is against suicide and murder. 4 Joyce, Ins. � 3773; Nibl. Ben. Soc. & Acc. Ins. � 377; Insurance Co. v. McConkey, 127 U.S. 661, 8 S.Ct. 1360; Mallory v. Insurance Co., 47 N.Y. 52. It is true that the bodies of persons who die from drowning usually sink, but there are occasional circumstances under which they do not sink, and there was evidence in this case tending to show the presence of those circumstances. There was no autopsy, but there is no evidence tending to show that Mr. Winans was subject to any fits or sudden seizures. All the circumstances are consistent with accidental drowning except the mere fact that the body did not sink. If, however, it be assumed that some sudden seizure caused him to fall into the water, or came upon him after he had fallen into the water, it would not follow that death was not caused by drowning. H. left his lodging about 7 o'clock in the evening, intending to bathe. His clothes were found on the steps of the bathing machine, and about six weeks afterwards a body was washed ashore, claimed to be his. There was no other evidence of the circumstances of his death. The questions submitted for decision are stated as follows: "(1) Assuming H. to have been drowned, and that his death was not caused by suicide, or by his willful act in exposing himself to unnecessary danger, or while he was in a state of intoxication, are plaintiffs entitled to recover? (2) Was there any evidence, proper to be submitted to the jury, that H. was drowned?" Held, that the question was one for the determination of the jury. Trew v. Assurance Co., 6 Hurl. & N. 838. Where a temporary trouble, unusual and uncommon, causes one to fall into the water, and he is drowned, the company is liable. Indemnity Co. v. Borgan, 7 C. C. A. 581, 58 F. 945. So, when one was seized with an epileptic fit while crossing a stream,...