Couadeau v. American Acc. Co. of Louisville

• Decision Date: 03 February 1894
• Parties: COUADEAU v. AMERICAN ACC. CO. OF LOUISVILLE.
• Court: Kentucky Court of Appeals

25 S.W. 6

95 Ky. 280

COUADEAU v. AMERICAN ACC. CO. OF LOUISVILLE.

Court of Appeals of Kentucky.

February 3, 1894

Appeal from Louisville law and equity court.

"To be officially reported."

Action by Cordelia B. Couadeau against the American Accident Company of Louisville on a policy on the life of Eugene Coaudeau deceased. Judgment for defendant. Plaintiff appeals. Reversed.

O'Neal Phelps & Pryor and Kohn, Baird & Speckert, for appellant.

B. F Buckner and Bullitt & Shield, for appellee.

HAZELRIGG J.

Eugene Couadeau, the husband of the appellant, held an accident policy of insurance for $5,000 on his life in the appellee company. The petition of the appellant, filed in the Jefferson court of common pleas, avers that on about the 14th day of March, 1890, (the exact time being unknown,) her husband, through external, violent, and accidental means fell into, or by some means got into, the Ohio river or canal, and was drowned. The answer consists of a denial of knowledge or information of any injury or accidental means causing death, or that the required notice of death and attending circumstances had been given, and alleged the existence of one of the conditions operating under the terms of the policy to exempt the company from liability, namely, that death happened to the insured while he was "under the influence of intoxicating drinks," and that his death was "the result of his intoxicated condition." On the first trial of the case, which occurred in November, 1891, it was sworn by the appellant that the insured left his home for his place of business at the usual hour on the morning of March 14, 1890, in sound condition mentally and physically; that he was prosperous in business, and happy in his domestic relations; that he went through the day in his usual good humor and spirits, and was always of temperate and industrious habits; that, while not a "teetotaler," he was never known to get drunk or under the influence of intoxicants, and was not so on the day in question; that, though he stated to his wife he would return at the usual hour, he had been missing for weeks, and his body was finally found in the river, without marks of violence on it, and with his watch and some money in his pockets, and a ring on his finger. It was shown that the deceased resided with his family, consisting of a wife and four children, at Nineteenth and Baird streets, in the city of Louisville, and only a short distance from a canal, over which there was a bridge with low railings, and from the river, which, at the time mentioned, was very high, and covered the lowlands in the vicinity of the home of the deceased. The judgment of the coroner was that the deceased had come to his death from accidental drowning. The appellee introduced proof to the effect that the deceased was in the habit of spending his Sunday evenings at Weber's saloon, on Market street, where, on the night of the 14th of March, he was first seen about 6 o'clock; that he remained there until about half past 12 o'clock, engaged in playing cards for the drinks, and became very drunk according to some of the proof, and moderately under the influence of liquor according to others; that before leaving the saloon he was assisted to a coupe, having first ascertained the price of his fare, and getting some money changed to pay the driver. He was driven to the corner at lower Nineteenth street and helped out, where the driver testifies he left him alone, holding to a lamp-post in a helpless condition, not able to take care of himself, and at some distance from his residence. Upon this state of fact the jury, after proper instruction, found a verdict for the appellant for the amount of the policy, and judgment was accordingly rendered in her favor. Thereafter the court sustained the motion of the appellee for a new trial upon the sole ground that the verdict was "contrary to the weight of the evidence;" the court saying that the proof was clear that "the deceased was under the influence of intoxicating liquor when drowned, which, under the policy and instructions, entitled the defendant to a verdict." A second trial was had in June, 1892, upon the same proof theretofore offered. It was, in fact, merely formal, because the court had already reached the conclusion that the proof entitled the company to a verdict. The jury were therefore peremptorily instructed to so find.

It is the contention of the appellant that the court erred in granting the new trial, and that therefore this court should reverse the judgment last rendered, with directions to enter the one rendered upon the first verdict. The appellee insists that the new trial was properly granted, and, there being no error in the last one, the judgment should be affirmed. It seems to be conceded that the burden of showing the death of the insured to have been the result of an accident was on the appellant, and of showing that the insured came to his death while under the influence of intoxicating drinks was on the appellee....