Carpenter v. Iowa State Traveling Men's Ass'n

• Decision Date: 09 February 1932
• Docket Number: No. 41052.,41052.
• Parties: CARPENTER v. IOWA STATE TRAVELING MEN'S ASS'N.
• Court: Iowa Supreme Court

213 Iowa 1001

240 N.W. 639

CARPENTER

v.IOWA STATE TRAVELING MEN'S ASS'N.

No. 41052.

Supreme Court of Iowa.

Feb. 9, 1932.

Appeal from District Court, Jones County; H. C. Ring, Judge.

This was a proceeding by the plaintiff as assignee of the beneficiary under an accident insurance certificate to recover $5,000 from the defendant because of the accidental death of Marcus Z. Farwell. There was a trial to a jury, resulting in a verdict for the plaintiff. From the judgment entered thereon, the defendant appeals.

Affirmed.

Parsons & Mills, of Des Moines, for appellant.

George C. Gorman, of Cedar Rapids, for appellee.

KINDIG, J.

On January 20, 1920, the defendant-appellant, Iowa State Traveling Men's Association, a corporation, issued a certificate of accident insurance to Marcus Z. Farwell, 52 years of age, who then resided in Santa Rosa, Cal., but formerly lived at Monticello, Iowa.

The contract of insurance consisted of the aforesaid certificate, together with “the articles of incorporation and by-laws” of the appellant, and the insured's application for membership. Under the contract, the appellantinsured the said Farwell, as provided by the following stipulation: “Whenever a member in good standing of this Association shall, through external, violent and accidental means receive bodily injuries, which shall, independently and exclusively of all other causes, result, within 90 days in the death of the member, his beneficiary shall in lieu of weekly indemnity in these by-laws provided, be indemnified in the sum of $5,000.”

Elizabeth C. Farwell, wife of the insured, was named as the beneficiary in the insurance contract. After the execution of the aforesaid contract, the insured, Marcus Z. Farwell, was shot and killed at Santa Rosa, Cal., February 25, 1930. Thereafter the beneficiary duly assigned the above-named contract to the plaintiff-appellee Henry M. Carpenter. A demand was made upon the appellant by the appellee for the $5,000 under the insurance contract. Payment thereof, however, was refused by the appellant upon the theory that $500 only could be collected for the death of Marcus Z. Farwell under certain exceptions named in the insurance contract. These exceptions are claimed by appellant under the following provisions of that contract: “The Association shall not be liable for death, disability or loss in excess of one-tenth (1/10) of the amounts in these by-laws provided for indemnity for any injury arising from or effected or aggravated by any of the following causes, conditions or acts, or the results therefrom, to-wit: * * * Injuries intentionally inflicted upon the member by another person except in the perpetration of burglary and robbery * * * or injuries resulting from the discharge of firearms where there is no actual eyewitness to the discharge and infliction of the injury except the member himself. * * *”

It is claimed by the appellant that it is liable to appellee for $500 only because: First, the insured was intentionally shot by some unknown person, not in the perpetration of burglary or robbery; and, second, there was no eyewitness to the discharge of the firearm that killed the insured. Furthermore, it is said that there was no eyewitness to the infliction of the injury upon the insured which caused his death. Those defenses were especially pleaded as such by the appellant in its answer, and submitted to the jury by the trial court with other issues in the case. As explained in the preliminary statement, the jury found adversely to the appellant.

Complaint is now made by the appellant on two theories: First, that the district court erred in not directing the jury to find that there was no eyewitness as contemplated by the insurance contract; and, second, that the jury failed to follow the evidence when they concluded that the insured did not come to his death by “injuries intentionally inflicted upon him by another person not in the perpetration of burglary or robbery.” No other complaint is made by appellant, and, in effect, it is conceded by it that the appellee has in every respect complied with the law and the contract in giving notice, supplying proof, etc. Our attention, then, is directed to the two matters of which appellant complains.

I. Was there an eyewitness, within the contemplation of the exception named in the insurance contract? That is the first question.

[1] When considering the evidence with reference to this proposition, it is necessary to understand that appellant had the burden of proof at this point. The general provision for insurance did not contain this exception. In other words, the stipulation relating to an actual eyewitness to the discharge of the firearm and infliction of the injury came after the aforesaid general provision at another place in the insurance contract by way of a special limitation upon the general clause. An exception of this kind is a condition subsequent, and the burden of pleading thereunder, as well as furnishing the necessary proof to sustain such pleading, rests upon the insurer. Connell v. Iowa State Traveling Men's Association, 139 Iowa, 444, 116 N. W. 820;Allen, Trustee v. Travelers' Association, 163 Iowa, 217, 143 N. W. 574, 48 L. R. A. (N. S.) 600;Ellis v. Interstate Business Men's Accident Association, 183 Iowa, 1279, 168 N. W. 212, L. R. A. 1918F, 414;Robinson v. Hawkeye Commercial Men's Association, 186 Iowa, 759, 171 N. W. 118;Fiedler v. Iowa State Traveling Men's Association, 191 Iowa, 287, 179 N. W. 317;Olson v. Southern Surety Co., 201 Iowa, 1334, 208 N. W. 213. See also Dobson v. Clemens & Co. et al., 194 Iowa, 1155 (local citation, 1161), 191 N. W. 184. If, then, there is a conflict in the evidence, appellant would not be entitled to a directed verdict upon this issue. Appellant had the burden, therefore, not only of proving the exception by a preponderance of the evidence, but also, if it desired a directed verdict, of demonstrating that there is no substantial conflict on this proposition in the record. It is necessary, then, to review the evidence in order to ascertain whether appellant is entitled to a directed verdict because there was no eyewitness, as required by the insurance contract.

Marcus Z. Farwell was a commercial lawyer at Santa Rosa, Cal., and president of the Consolidated Adjustment Company, a commercial adjustment agency. On February 25, 1930, Mr. Farwell, who, as before said, was a married man, came to his home in the evening and ate dinner with his wife. Thereafter, at about half past 7 o'clock that evening, he left home on foot. When thus leaving home, Mr. Farwell said to his wife that he was going to make two business calls in another part of town, which could not be made in the daytime.

After leaving his house, Mr. Farwell went to the home of Dan Chironi, who lived a mile or more away. Apparently Farwell remained at the Chironi house about an hour, where he was endeavoring to make a collection for a Dr. Bonar, and left there at about 8:30 o'clock in the evening. Mr. Chironi, when Mr. Farwell was leaving his home, noticed clouds which threatened rain, and the former offered to take the latter home in his automobile. This offer was refused by Mr. Farwell, who said that other collection calls were to be made before he could return home. At about 9:15 o'clock thereafter, on the same evening, Mr. and Mrs. Charles E. Shultz, residing at 700 Washington street in Santa Rosa, heard an explosion which they thought was the back-fire of an automobile. Mrs. Bertha Noyes, living in the Casa del Sol Apartments at 608 Washington street, at about 9:30 on the same evening heard the moans or calls of some one in distress, but the night was dark, a mist was falling, and she could not see the person calling. Immediately, Mrs. Noyes called occupants of other apartments, and finally she, Mr. Grady, and Mr. Babcock went in the latter's car to the place where the man was calling. By turning on the automobile lights, the occupants of the car could see Mr. Farwell lying on the ground with his feet on the sidewalk and his body on a vacant lot, about 60 feet from the Shultz home, before mentioned.

In response to questions, Mr. Farwell replied that he had been shot. Grady, above named, called the police. When the police came, Mr. Farwell was taken across the street to a hospital, where he shortly died. At the time of his death, the insured was 62 years of age. Dr. Reiss performed a post mortem examination and found a gun wound on the body of Mr. Farwell, caused by a .38-caliber bullet. The bullet entered Farwell's back at about the “lower level of the scapula near the middle line of the back; the exit of the bullet was in the left anterior chest at about the level of the upper border of the heart.” It was found by the doctor that the bullet entered Mr. Farwell's back “slightly to the left of the medium line and approximately at the middle of the shoulder-blade. The course of the bullet was upward from its inception.” After returning to the place where Mr. Farwell was found, the police located a revolver “of the army type” in which were both loaded and discharged shells. The identification numbers had been scratched out on, or obliterated from, the revolver.

An investigation revealed that Mr. Farwell, at the time of his death, retained his watch, money, and all other valuables. There was nothing to indicate that his clothing had been ruffled or disturbed in any way. Before his death, as previously stated, Mr. Farwell made declarations not only to the three persons who found him, but to the police as well. These witnesses do not all agree concerning what Mr. Farwell said. He appears to have stated, however: “I have been shot.” When asked who did the shooting, he replied: “The kids.” To another inquiry, he is said to have replied that he did not know who did the shooting; “that someone had slipped up behind him.” Mr. Farwell undoubtedly was shot at the time the Shultz family thought they heard the back-fire from...