Lambert v. Metro. Life Ins. Co.

• Decision Date: 14 October 1941
• Docket Number: (No. 9202)
• Parties: Dora P. Lambert v. Metropolitan Life InsuranceCompany.
• Court: West Virginia Supreme Court

123 W.Va. 547

Dora P. Lambert

v. Metropolitan Life InsuranceCompany.

(No. 9202)

Supreme Court of Appeals of West Virginia.

Submitted September 10, 1941.

Decided October 14, 1941.

1. Insurance

In a suit or action to recover on an accident insurance policy, the burden of establishing a prima facie case of accidental death or injury rests upon the plaintiff.

2. Insurance

Where a prima facie showing of accidental injury or death has been made, the burden of establishing any fact, which, under the terms of the policy, would bar recovery, rests upon the insurer.

3. Evidence

Where the facts surrounding an injury or death have been developed by evidence, any question as to liability arising therefrom must be determined from the evidence, unaided bypresumptions other than those arising from the evidence introduced.

4. Insurance

In a suit or action to recover on an accident insurance policy, on account of the death of the insured, the presumption of law against suicide, does not, in a case where the facts connected with the death are shown by the evidence, relieve the plaintiff of the burden of showing facts and circumstances from which accidental death may be established or reasonably inferred.

Error to Circuit Court, Mercer County.

Action by Dora P. Lambert against the Metropolitan Life Insurance Company on an accident policy. To review a judgment for plaintiff, the defendant brings error.

Reversed and remanded.

Kenna, President, and Lovtns, Judge, dissenting.

Harriett L. French, for plaintiff in error. Sanders & Day and Walter G. Burton, for defendant in error.

Fox, Judge:

This case comes to us on a writ of error to a judgment of the Circuit Court of Mercer County, in an action on an accident insurance policy, in which Dora P. Lambert was plaintiff, and the Metropolitan Life Insurance Company defendant. The insured was Lloyd L. Lambert, and Dora P. Lambert, his wife, was the named beneficiary. The policy provided for the payment of $5,000.00 in case of death "caused directly and independently of all other causes by violent and accidental means", and also contained a provision that "This insurance shall not cover suicide or any attempt thereat while sane or insane." Lloyd L. Lambert died of a gun shot wound on January 15, 1940.

The declaration filed follows closely the form prescribed by statute, (Code, 56-4-17), and the policy sued on was referred to in the declaration and filed therewith. The defendant filed its plea denying the liability asserted against it, and also filed its specification of defense, wherein it set up the policy provision with respect to suicide and continued, "The defendant says that Lloyd L. Lambert, the insured, committed suicide on the 15th day of January, 1940." On the issues so made, the case was tried by a jury, and a verdict for the plaintiff for the face of the policy returned, on which, after a motion to set aside was overruled, the court entered judgment, and an exception to such action taken at the time.

The first question presented is that of the burden of proof, having in mind the affirmative defense of suicide set up in the specification of defense. The rule is that in a suit or action on an accident policy, or a double indemnity clause covering accident in a life insurance policy, the burden is on the insured to establish a prime facie case of accident before recovery can be had. Ryan v. Metropolitan Life Ins. Co., 206 Minn. 562, 289 N. W. 557; Jefferson Standard Life Ins. Co. v. Clemmer, 79 Fed. (2d) 724, 103 A. L. R. 171; Travelers Ins. Co. v. Wilkes, 76 Fed. (2d) 701; Scales v. Prudential Ins. Co., 109 Fed. (2d) 119; New York Life Ins. Co. v. Gamer, 303 U. S. 161, 58 S. Ct. 500, 82 L, Ed. 726, 114 A. L. R. 1218, 20 Amer. Juris. 138, 142; Martin v. Mutual Life Ins. Co., 106 W. Va. 533, 146 S. E. 53. The rule is different where recovery is sought on a life insurance policy, and an excepted risk is sought to be established. There the burden of establishing the exception rests on the insurer. Goodbar v. Western & Southern Life Ins. Co., 89 W. Va. 221, 108 S. E. 896; McDaniel v. Metropolitan Life Ins. Co., 119 W. Va. 650, 195 S. E. 597. Does the fact that, in the case at bar, the affirmative defense of suicide is made, shift the burden of proof? In the first place, but for the statute (Code, 56-4-21), the insurer could have offered evidence of suicide under its plea of no liability; and the statutory requirement of specific statement of defense, if arising out of the policy, being for the benefit of the insured, should not be permitted to operate to the prejudice of the insurer; and, secondly, the Federal cases seem to hold, uniformly, that the burden does not shift in such circumstances. Travelers Ins. Co. v. Wilkes, supra; Jefferson Standard Life Ins. Co. v. Clemmer, supra; New York Life Ins. Co. v. Gamer, supra. In the case last cited the Court said:

"Under the contract in the case now before us, double indemnity is payable only on proof of death by accident as there defined. The burden was on the plaintiff to allege and by a preponderance of the evidence to prove that fact. The complaint alleged accident and negatived self-destruction. The answer denied accident and alleged suicide. Plaintiff's negation of selfdestruction taken with defendant's allegation of suicide served to narrow the possible field of controversy. Only the issue of accidental death vel non remained. The question of fact to be tried was precisely the same as if plaintiff merely alleged accidental death and defendant interposed denial without more."

And in the Wilkes case it was stated:

"Defendant's denial, in action on accident insurance policy, that insured's death was accidental, was sufficient plea, and additional plea of suicide added no defensive merit, but was merely denial that death was of sort insured against, so that burden remained on plaintiff to prove accidental death."

These statements find support in Ryan v. Insurance Co., supra, and Scales v. Insurance Co., supra, and there is nothing in our decisions, or the practice of our courts in conflict therewith. We therefore conclude that the burden of showing accidental death remained with the plaintiff at every stage of the trial, and that a showing of facts and circumstances from which a reasonable mind could infer accident was vital to any recovery, independent of any presumption against suicide.

The next question to be considered is the effect to be given to the legal presumption against suicide. In Beck- ley National Exchange Bank v. Provident Life & Accident Ins. Co., 121 W. Va. 152, 2 S. E. (2d) 256, we held:

"When death occurs from unexplained violent and external means, an accident may be presumed; but presumption is excluded when the cause of death is shown." In that case we qualified Martin v. Insurance Co., supra, wherein it was inferentially held that the presumption would be permitted to operate in all cases. In neither of these cases was suicide involved. In both, injuries alleged to result from violations of law were involved, but it is believed that the same presumption as to accident would apply in a case where suicide might be alleged. While there is a presumption against suicide, that presumption cannot have weight or influence against proven facts or evidence as to the cause of death. That is what our cases, in effect, hold. In the Provident Life case we said, "Here the cause of death was explained. There was no place for presumption; the case must be judged on the facts." In McDaniel v. Insurance Co., supra, we held:

"While there is a presumption of law against suicide, such presumption is not evidence, and a showing of facts or circumstances which would warrant a jury in finding that death resulted from a suicidal act overcome such presumption, and requires a finding in the case by a jury or the court, independently thereof, upon evidence produced at the trial."

This holding is supported by Jefferson Standard Life Ins. Co. v. Bentley, 55 Ga. App. 272, 190 S. E. 50; Gem City Life Ins. Co. v. Stripling, 176 Ga. 288, 168 S. E. 20; King v. New York Life Ins. Co., 28 Ga. App. 607, 112 S. E. 383; Hawkins v. Industrial Com., 157 Minn. 33, 195 N. W. 766, 36 A. L. R. 394. The presumption against suicide is not evidence and does not regulate or change the burden of proof. Travelers Ins. Co. v. Wilkes, supra; Jefferson Standard Life Ins. Co. v. Clemmer, supra; Watkins v. Prudential Ins. Co., 315 Pa. 497, 173 Atl. (Pa.) 644, 95 A. L. R. 869; New York Life Ins. Co. v. Gamer, supra. The facts surrounding Lambert's death those tending to show accident and those supporting the theory of sui- cide were developed by the evidence, and when developed any presumptions should have been discarded, and the question at issue decided on the evidence alone. We think this position is clearly upheld by our own decisions, the decisions from other states, and in the Federal courts.

The plaintiff below carried the burden of showing by evidence facts and circumstances which would warrant a jury in finding that the death of the insured was the result of violent and accidental means. She was under the burden of showing, "Circumstances which, if not inconsistent with suicide, are at least consistent with theory of accident." New York Life Ins. Co. v. Sparkman, 101 Fed. (2d) 484. "Verdicts must rest on probabilities and not on mere possibilities." New York Life Ins. Co. v. Trimble, 69 Fed. (2d) 849. To the same effect are the holdings in Equitable Life Assurance Society v. Guiou, 86 Fed. (2d) 865, and Agen v. Metropolitan Life Ins. Co., 105 Wis. 217, 80 N. W. 1020, 76 Am. St. Rep. 905.

We must now determine from the evidence whether she has sustained the burden of proof. The insured was a respected citizen of the City of Princeton and a trusted employee of a banking institution in that city. He lived in Princeton, about three-quarters of a mile from his place of employment. It was his custom to take his noon meal at his home, and to travel to and from his...