Mabee v. Continental Casualty Co.

• Decision Date: 04 August 1923
• Citation: 37 Idaho 667,219 P. 598
• Parties: CAROLINE L. MABEE, Respondent, v. CONTINENTAL CASUALTY COMPANY, a Corporation, Appellant
• Court: Idaho Supreme Court

219 P. 598

37 Idaho 667

CAROLINE L. MABEE, Respondent, v. CONTINENTAL CASUALTY COMPANY, a Corporation, Appellant

Supreme Court of Idaho

August 4, 1923

ACCIDENT INSURANCE-INSURED NOT RESPONSIBLE FOR FATAL INJURY-INSTRUCTIONS - INJURY SUSTAINED WHILE UNDER INFLUENCE OF INTOXICANTS-FALSE STATEMENT IN APPLICATION-KNOWLEDGE OF AGENT-KNOWLEDGE OF COMPANY-WAIVER.

1. In an action to recover upon an accident insurance policy, where it appears from the evidence that the deceased was shot from behind by his assailant without warning, after an interval of time following the termination of a violent altercation during which interval the slayer left the scene of the quarrel and entered a house and the deceased was preparing to leave, held, that the deceased did not lose his life as the result of any personal bodily injury effected other than by the happening of an external, violent and purely accidental event.

2. Held, that under the evidence the trial court did not err in giving the following instruction: "As to the issue that the death of the said Mabee was the natural, proximate and probable consequence of his unlawful assault upon the said Wagoner, and not the result of a personal bodily injury effected solely and independently of all other causes by the happening of an external, violent and purely accidental event, I instruct you that there is no evidence to sustain the same, and you will find for the plaintiff on that issue."

3. Where an accident insurance policy provides that no recovery can be had thereunder for injury sustained while the insured was "under the influence of any intoxicant or narcotic," before the insurance company can avoid the policy on that ground it must appear that the insured who suffered fatal injury was under such influence to a degree that substantially impaired his judgment in the exercise of the faculties essential to his safety and made him irresponsible for his acts.

4. Held, that the instructions given by the court on the question of intoxication of the deceased at the time the fatal injury was received were not prejudicial to defendant company.

5. Where an accident insurance policy provides that if the insured shall carry other insurance with another company "covering the same loss without giving written notice to the company, then in that case the company shall be liable only for such proportion of the indemnity promised as the said indemnity bears to the total amount of like indemnity in all policies covering such loss, and for the return of such portion of the premium paid as shall exceed the pro rata for the indemnity thus determined," and the application contains a statement that the applicant carries no other insurance, but the agent who takes the application is informed of and is at that time shown another policy for the same loss, and thereafter the company accepts the application and issues the policy, the knowledge of the agent is the knowledge of the company, and in case of loss and suit to recover on the policy the company will not be permitted to set up the defense that the policy was rendered void by the violation of such condition.

6. Where the complaint contains no allegation of waiver but the affirmative answer tenders that issue, evidence is properly admissible thereunder on behalf of plaintiff as rebuttal matter to meet a defense attempted to be raised by the defendant.

APPEAL from the District Court of the Eighth Judicial District, for Bonner County. Hon. John M. Flynn, Judge.

Action to recover upon an accident insurance policy. Judgment for the plaintiff. Affirmed.

Judgment of the trial court affirmed, with costs in favor of respondent.

Herman H. Taylor, for Appellant.

Where a policy insures against an injury effected by accidental means or by an accidental event, it is not enough that the death or injury should be unexpected or unforeseen, but there must be something of an unforeseen character in the means whereby the injury was received. (Smith v. Travelers' Ins Co., 219 Mass. 147, 106 N.E. 607, L. R. A. 1915B, 872; Maryland Cas. Co. v. Spitz, 246 F. 817, L. R. A 1918C, 1191; Carnes v. Iowa Traveling Men's Assn., 106 Iowa 281, 68 Am. St. 306, 76 N.W. 683; Horton v. Travelers' Ins. Co., 45 Cal.App. 462, 187 P. 1070; Pledger v. Business Men's Assn. (Tex. Civ.), 197 S.W. 889; Johnson v. Aetna Life Ins. Co., 24 Ga. 431, 101 S.E. 134; Husbands v. Indiana Travelers' Acc. Assn. (Ind.), 133 N.E. 130; Kendall v. Travelers' Prot. Ins. Co., 87 Ore. 179, 169 P. 751; Rock v. Travelers' Ins. Co., 172 Cal. 462, L. R. A. 1916E, 1196, 156 P. 1029; Martin v. People's Mut. Life Ins. Co., 145 Ark. 43, 223 S.W. 389, 11 A. L. R. 1111.)

Where the insured brings about an assault upon himself by his own wrongful act, or where under such circumstances he would naturally be presumed to know that injury is likely to be inflicted, and he voluntarily places himself in a position that may be reasonably expected to bring about an assault upon him, an injury so received is not effected by accidental means or by an accidental event. (Taliaferro v. Travelers' Prot. Assn., 80 F. 368, 25 C. C. A. 494; Prudential Casualty Co. v. Curry, 10 Ala. App. 642, 65 So. 852; Price v. Occ. Life Ins. Co., 169 Cal. 800, 147 P. 1175; Postler v. Travelers' Ins. Co., 173 Cal. 1, 158 P. 1022; Hutton v. State Acc. Ins. Co., 267 Ill. 267, Ann. Cas. 1916C, 577, 108 N.E. 296, L. R. A. 1915E, 127; Meister v. General Acc. Corp., 92 Ore. 96, 179 P. 913; Interstate Business Men's Acc. Assn. v. Lester, 257 F. 225, 168 C. C. A. 309; Fidelity & Casualty Co. of New York v. Staceys, 143 F. 271, 6 Ann. Cas. 955, 74 C. C. A. 409, 5 L. R. A., N. S., 657.)

Under the exemption provision of the policy it was the duty of the court to direct a verdict in favor of the defendant, as the undisputed facts clearly disclosed that the assured was shot while he was not only under the influence of an intoxicant, but was in fact intoxicated or drunk. (Shader v. Railway Passenger Ins. Co., 66 N.Y. 441, 23 Am. Rep. 65; Standard Life & Acc. v. Jones, 94 Ala. 434, 10 So. 530; Campbell v. Fidelity & Casualty Co., 109 Ky. 661, 60 S.W. 492; Bakalars v. Continental Cas. Co., 141 Wis. 43, 18 Ann. Cas. 1123, 25 L. R. A., N. S., 241, 122 N.W. 721; Furry's Admr. v. General Acc. Ins. Co., 80 Vt. 526, 130 Am. St. 1012, 13 Ann. Cas. 515, 68 A. 655, 15 L. R. A., N. S., 206.)

It was error for the court to permit the introduction of oral testimony as to a waiver, as no waiver was pleaded. ( McLeod v. Travelers' Ins. Co., 8 Ga.App. 765, 70 S.E. 175; Barclay v. London Guarantee Co., 46 Colo. 558, 105 P. 865; Cranston v. West Coast Life Ins. Co., 63 Ore. 427, 128 P. 427; Snell v. North British & Mercantile, 61 Mont. 547, 203 P. 521; Stearns Lumber Co. v. Travelers Ins. Co., 159 Wis. 627, 150 N.W. 991; Edwards v. Sovereign Camp, 61 Okla. 243, 161 P. 170; Aronson v. Frankfort Acc. Co., 9 Cal.App. 473, 99 P. 537; Atlas Life Ins. v. Moman, 14 Ala. App. 400, 69 So. 989; Modern Woodmen v. Weekley, 42 Okla. 25; 139 P. 1138.)

The testimony relative to the conversation with one Hutchinson showed that he was a mere soliciting agent for the defendant. A soliciting agent has no authority to waive any of the conditions of the policy. (Merchants & Planters' Ins. Co. v. Marsh, 44 Okla. 453, 125 P. 1100, 42 L. R. A., N. S., 996; House v. Security Fire Ins. Co. (Iowa), 121 N.W. 509; Kansas City Life Ins. Co. v. Blackstone (Tex. Civ.), 143 S.W. 702; Scrivner v. Anchor Fire Ins. Co., 144 Iowa 328, 122 N.W. 942; Belden v. Union Cent. Life, 167 Cal. 740, 141 P. 370; McElroy v. Metropolitan Life, 84 Neb. 866, 19 Ann. Cas. 28, 122 N.W. 27, 23 L. R. A., N. S., 968; Romano v. Concordin Fire Ins. Co., 121 A.D. 489, 106 N.Y.S. 63; Henning v. American Ins. Co., 108 Kan. 194, 194 P. 647; Mutual Life Ins. Co. v. Powell, 217 F. 565, 133 C. C. A. 417; Modern Woodmen v. Weekley, supra; New York Life v. Patten, 151 Ga. 185, 106 S.E. 183; McCormack v. Security Mutual Life, 220 N.Y. 447, 116 N.E. 74; Elliott v. Frankfort Marine etc. Ins. Co., 172 Cal. 261, 156 P. 481, L. R. A. 1916F, 1023.)

Wm. J. Costello, for Respondent.

Evidence of waiver was admissible under the pleadings. (Douville v. Pacific Coast Casualty Co., 25 Idaho 396, 138 P. 506; McKune v. Continental Casualty Co., 28 Idaho 22, 154 P. 990.)

Appellant was bound by the act of Hutchinson within his apparent authority as its acknowledged agent. (C. S., secs. 5013, 5019; Carroll v. Hartford Fire Ins. Co., 28 Idaho 466, 154 P. 985.)

In cases like the one at bar, where death occurred by violent means external to the man and against or without intention or concurrence of will on the part of the man, death may properly be called an accident. (2 Biddle on Insurance, p. 780.)

FEATHERSTONE, District Judge. Dunn, William A. Lee and Wm. E. Lee, JJ., concur.

OPINION

FEATHERSTONE, District Judge.

--This action was brought to recover upon an accident insurance policy covering the life of Herbert M. Mabee, and is brought by his widow Caroline L. Mabee, the respondent, to recover for the accidental death of her husband. The answer denies the material allegations of the complaint, and upon the issues made the case was tried by the court with a jury and resulted in a verdict and judgment in favor of the respondent in the sum of $ 2,530, together with interest and costs. A motion for a new trial was denied, and this appeal was taken from the judgment and order denying the motion. Numerous errors are assigned, but, as we view the case, only a few of them need to be specifically reviewed in this opinion.

It appears from the record that Herbert M. Mabee was killed on the street in Paradise, Montana, by one Gus Wagoner on October 17, 1920. Mabee was standing thirty or forty feet from the entrance of Wagoner's store, and was facing in such...