Equitable Life Assur. Soc. of United States v. Gratiot, 1742

Citation45 Wyo. 1,14 P.2d 438
Decision Date26 September 1932
Docket Number1742
PartiesEQUITABLE LIFE ASSUR. SOC. OF UNITED STATES v. GRATIOT
CourtUnited States State Supreme Court of Wyoming

ERROR to District Court, Natrona County; C. D. MURANE, Judge.

Action by Ardelle B. Gratiot against the Equitable Life Assurance Society of the United States. To review a judgment in favor of plaintiff, defendants bring error.

Affirmed.

For the plaintiff in error there was a brief by Hagens & Wehrli of Casper, Wyoming, and oral argument by Mr. G. R. Hagens.

The double indemnity clause of the policy created liability for death caused by bodily injury, effected solely through external, violent and accidental means, and where death should occur as the direct result thereof, independent of all other causes, and it expressly provided that it should not apply where death resulted directly or indirectly from bodily or mental infirmity. The question has been before the courts in a number of cases where the identical or analogous language was used in the policy, and where under the evidence, it has been shown that alleged injuries were not the sole cause of death, double indemnity has been denied. Stanton v. Trav. Ins. Co., (Conn.) 78 A. 317, 34 L R. A. (N. S.) 445; Com. Trav. Mut. Acc. Assn. v. Fulton et al., 79 F. 423; Natl. Masonic Acc. Assn. v Shyrock, 73 F. 774; Md. Cas. Co. v. Morrow, 213 F. 599; Kellner v. Trav. Co., (Calif.) 181 P. 61; White v. Standard Life & Acc. Ins. Co., (Minn.) 103 N.W. 735; Aetna Life Ins. Co. v. Bethel, (Ky.) 131 S.W. 523; Binder v. Natl. Masonic Acc. Assn., (Ia.) 102 N.W. 190; Cretney v. Woodmen Acc. Co., (Wis.) 219 N.W. 448; Michener v. Fidelity etc. Co., (Ia.) 203 N.W. 14; Johnson v. Aetna Life Ins. Co., (Ga.) 101 S.E. 134; Merrett v. Preferred etc. Assn., (Mich.) 57 N.W. 169. The burden of proof is on plaintiff to show that death was the result of an accident. Atherton v. Railway Mail Assn., (Mo.) 221 S.W. 752; Phillips v. Travelers Ins. Co., (Mo.) 231 S.W. 947; Fidelity & C. Co. v. Meyer, (Ark.) 152 S.W. 995. As the evidence showed that an aneurysm, caused at the point of the rupture in the artery at the time of death, which was a bodily infirmity, the court abused its discretion in refusing to submit to the jury Instruction Numbered "f" requested by the plaintiff. There was no competent proof in the record showing that an accident, in fact, occurred, or that the injury resulted to decedent from the car driven by Mr. Gratiot, leaving the road on July 2, 1930. There is no other proof of the claim that an accident in fact occurred. It was proven that decedent was affected in his speech, suffered drowsiness, etc. which was due to the hardening of his arteries and which extended over a period of ten years. It was nowhere denied that the weakness of the artery at the point of the aneurysm, was a contributing factor, and in fact, one of the causes of death. Plaintiff failed to sustain the burden of proof that death was due to accident merely, and that no bodily infirmity contributed thereto.

For the defendant in error there was a brief by Durham and Bacheller of Casper, Wyoming, and oral argument by Mr. E. Paul Bacheller.

If there was any doubt in the mind of counsel for plaintiff in error, as to the truth of the testimony of Mr. and Mrs. ReQua, there were two other witnesses available. It must therefore, be assumed that their testimony would have been unfavorable to plaintiff in error. With the exception of some scattering authorities, the great weight of authority holds that the burden is upon the defendant to plead and prove exceptions stated in the policy to establish a right of recovery, where death has resulted directly or indirectly from bodily or mental infirmity. Nichols v. Coml. Trav. Assn. , (Mass.) 109 N.E. 449; Starr v. Aetna Life Ins. Assn., (Wash.) 83 P. 113; Redmen's Fraternal etc. Assn. v. Rippey, (Ind.) 103 N.E. 345, 50 L. R. A. (N. S.) 1006 and note. Instruction No. 1, given by the court, was a fair statement of the law as applied to the double indemnity clause in the policy. The question of what is, or is not, a bodily infirmity, is for the jury. Black v. Traveler's Ins. Co., 121 F. 732; Keiper v. Equitable Life Ins. Soc., 159 F. 206; Mutual Life Ins. Co. of N.Y. v. Dodge, 11 F.2d 486, (Certiorari denied) 46 S.Ct. 629; Union Trust Co. v. Rwy. Co., 214 N.W. 166. It was proven that death was caused by hemorrhage of the brain due to accident, a broken artery resulted in trauma or injury which took place immediately following the accident. The authorities amply support the trial court in refusing the motion of plaintiff in error for a new trial, as well as its motion for a judgment, notwithstanding the verdict. U. S. Casualty Co. v. Thrush, (Ohio) 152 N.E. 796; Corsones v. Monarch Ins. Co., 154 A. 693; Jefferson Std. Life Ins Co. v. Lightsey, 40 F.2d 586; United Com. Travelers v. Etchen, 162 N.E. 636; Silverstein v. Met. Life Ins. Co., 171 N.E. 914; Druhl v. Equitable Life Assurance Soc., (N. D.) 218 N.W. 220. It was fairly established by the evidence that deceased was in good health for a number of years prior to the accident; that aneurism was caused by the accident, and if not caused by the accident, was of such insignificance and latency that it was harmless; that deceased suffered an accident on July 2, 1930, which caused his death.

Hagens and Wehrli in reply.

The case of Druhl v. Equitable Assn., 218 N.W. 220 cited by defendant in error, does not sustain the contention of her counsel. Nichols v. Com. Trav. Accident Assn., (Mass.) 109 N.E. 449, absolved the Company from liability in case of accident resulting from "voluntary exposure to unnecessary danger." In Mutual Life Ins. Co. v. Dodge, 11 F.2d 486, the trial court defined "bodily infirmity" which definition was sustained on appeal. The autopsy showed that an aneurysm existed more than 30 days before the time of death, and that there was a calcification of the arteries going out of the heart and out of the brain of the deceased, which had been in process of development for at least six months. It is well settled that bodily infirmity or disease are terms which have a definite meaning. Meyer v. Fidelity & Cas. Co., supra. Bodily infirmity means a settled disease that would result to some degree, in the general impairment of physical health and vigor. French v. Fidelity Cas. Co., (Wis.) 115 N.W. 869. Both expert witnesses for defendant in the court below, testified that in the case at bar the aneurysm was the cause of death, and one of plaintiff's witnesses admitted that it was one of the causes of death. Defendant's motion for a directed verdict should have been sustained. Elizabeth Drew Brown v. Md. Cas. Co., F.2d , not yet reported. The jury without evidence to support it, cannot conclude the court or the parties by a finding contrary to the uncontradicted evidence in the case. Feldhouser v. Leisburg, 15 Wyo. 208. Opinions of expert witnesses must be disregarded if formed without the aid of facts necessary to enable the witnesses to come to a conclusion. McQuade v. Met. St. Ry. Co., 82 N.Y.S. 720; Sands v. City of N. Y., 172 N.Y.S. 16; Hahn v. Duveen, 234 N.Y.S. 185. Opinion of experts is the weakest evidence known to the law. Security Fin. Co. v. Cook, (Ky.) 3 S.W.2d 187; Louisville & N. R. Co. v. Rowland's Admr., (Ky.) 14 S.W. 174, 22 C. J. 735; Balaban etc. Co. v. Com., 30 F.2d 807; Elliott v. Chi. M. & St. P. Ry. Co., (Mo.) 236 S.W. 17. An opinion of a physician that death was due to a disease rather than other causes, based on general observations only, is conjectural and too uncertain to sustain a verdict. Mageau v. Great Nor. Rwy. Co., (Minn.) 119 N.W. 200, 3 Blashfield's Cyc. Auto Law 2125. The testimony of Mr. and Mrs. ReQua and Dr. Replogle as to how the rupture of the basilar artery of decedent's brain, came about, is too uncertain and conjectural to form a basis for a jury. Johnson v. Aetna Life Ins. Co., (Ga.) 101 S.E. 134; McGowan v. Nelson, (Mont.) 92 P. 40.

BLUME, Justice. KIMBALL, Ch. J., and RINER, J., concur.

OPINION

BLUME, Justice.

This is an action upon a life insurance policy of $ 2500 issued to James T. Gratiot during his life time, and providing for double indemnity in case of death through accident. Gratiot died on July 11, 1930. The amount of ordinary insurance, namely, the sum of $ 2500, was paid, but payment of double indemnity was refused, and this suit was brought to recover it. The case was tried to a jury who returned a verdict for the amount claimed. Judgment was rendered thereon, and the insurance company, the defendant, has appealed. It is its contention that the evidence fails to show that the deceased suffered any accident, and if it could be assumed that he did, the evidence fails to show that such accident was the sole and exclusive cause of the injury of which the deceased died, but that, on the contrary, it is conclusively shown that an aneurysm was at least one of the causes of death. The clauses in the policy referring to double indemnity are as follows:

"Upon due proof that the death of the Insured occurred in consequence of bodily injury effected solely through external, violent and accidental means, of which, except in case of drowning or of internal injuries revealed by an autopsy, there is a visible contusion or wound on the exterior of the body, and that such death occurred within ninety days after such injuries were sustained and as the direct result thereof independent of all other causes, the Society will pay instead of the face amount of this policy double that amount, making FIVE THOUSAND DOLLARS * * *.

This agreement, to pay an increased amount in the event of death from bodily injury, does not cover self-destruction, sane or insane; death resulting from participation in aeronautics or submarine expeditions; death caused directly or...

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