Mutual Life Ins. Co. of New York v. Sargent

• Decision Date: 05 August 1931
• Docket Number: No. 6074.,6074.
• Citation: 51 F.2d 4
• Parties: MUTUAL LIFE INS. CO. OF NEW YORK v. SARGENT.
• Court: U.S. Court of Appeals — Fifth Circuit

51 F.2d 4 (1931)

MUTUAL LIFE INS. CO. OF NEW YORK v. SARGENT.

No. 6074.

Circuit Court of Appeals, Fifth Circuit.

July 9, 1931.

Rehearing Denied August 5, 1931.

Douglas Arant, of Birmingham, Ala. (William M. Neal, of Birmingham, Ala., Frederick L. Allen, of New York City, and Bradley Baldwin, All & White, of Birmingham, Ala., on the brief), for appellant.

W. H. Mitchell, of Florence, Ala., and A. N. Carmichael, of Tuscumbia, Ala., for appellee.

Before FOSTER, SIBLEY, and HUTCHESON, Circuit Judges.

HUTCHESON, Circuit Judge.

This appeal is from a verdict and judgment in favor of appellee, plaintiff below, in a suit upon a policy providing double indemnity for death effected solely through external, violent, and accidental means.

At the close of the evidence, appellant, defendant below, moved for an instructed verdict on the ground that the evidence did not permit of any other conclusion than that, though deceased came to his death through external and violent means, yet the death was not an accidental one because induced by the voluntary actions of deceased when he knew or ought to have known that his death would reasonably result.

Only one error is assigned, the action of the court in not taking the case from the jury. The charge of the court is not brought up in the record, and it is conceded that if the case was one for the jury, the court correctly and fairly submitted the issues.

Appellee invokes the rule that "the jury must determine the fact as to what caused the death. There need not necessarily be direct proof or evidence of the cause. The cause may be found by the jury from facts and circumstances." Laessig v. Travelers' Protective Ass'n, 169 Mo. 272, 69 S. W. 469, 471.

That if an occurrence is as to the insured "unforeseen, unexpected and unusual, not taking place according to the usual course of things and therefore accidental in the usual, natural and popular meaning of the word," it is an accident. Strother v. Accident Ass'n, 193 Mo. App. 718, 188 S. W. 314; Nerrow v. Pacific Mutual Life Ins. Co. (Mo. App.) 294 S. W. 97, 99; Laessig v. Travelers' Protective Ass'n, 169 Mo. 272, 69 S. W. 469.

He insists that this is pre-eminently a fact case for the jury. That before such a policy may be, as a matter of law, defeated, the chain of consequences must be more clearly and tightly drawn between an inexcusable act on the part of the insured and the fatal result than the record in this case draws it. That whether the deceased should have reasonably expected the result which followed his remaining at or returning to the place of the attack upon him was for the jury, and that an instruction for the defendant would have been as unreasonable as one for the plaintiff.

That appellee's position is the correct one we think a brief review of the record, in the light of the applicable law, will show.

The law of the case presents little difficulty, and may be stated in terms of established propositions.

That death is none the less accidental, within the terms of a policy like the one in suit, because of the fact that it results from the intentional act of another, if the insured is innocent of aggression or wrongdoing, or even if he is the aggressor, if he could not reasonably anticipate bodily injury resulting in death to himself at the hands of another. Occidental Life Ins. Co. v. Holcomb (C. C. A.) 10 F.(2d) 125, 126.

It is equally well settled that the fact that a citizen in going about the business of his life in the performance of his duties or obligations subjects himself to or meets when it is pressed upon him a hazard or danger, with conscious knowledge of such danger, does not prevent a finding that his death was accidental. Myrtle B. Sackett v. Masonic Protective Ass'n, 106 Neb. 238, 183 N. W. 101, 17 A. L. R. 188 and note; Interstate Business Men's Acc. Ass'n v. Lester (C. C. A.) 257 F. 225; Employers' Indemnity Corp. v. Grant (C. C. A.) 271 F. 136, 20 A. L. R. 1118 and note; Travelers' Ins. Co. v. Dupree, 17 Ala. App. 131, 82 So. 579.

"If the party does something which culpably provokes or induces the act causing his injury or death, then the result is not accidental; but, if he is wholly free from culpability himself, the result is accidental as to him." Interstate Business Men's Acc. Ass'n v. Lester (C. C. A.) 257 F. 225, 230; Occidental Life Insurance Co. v. Holcomb, supra.

Upon the matter of proof it is the law, though there are one or two authorities contra New York Life Ins. Co. v. Ollich (C. C. A.) 42 F.(2d) 399, 401, that while the burden is upon plaintiff in cases of this kind to prove death resulting from external, violent and accidental means, proof without more that insured was killed by another raises the presumption that death was accidental, and makes out a prima facie case in the absence of evidence to the contrary. Smith v. New York Life Ins. Co. (C. C. A.) 31 F.(2d) 281; Nerrow v. Pacific Mutual Life Ins. Co. (Mo. App.) 294 S. W. 97, 99; Withers v. Pacific Mutual Life Ins. Co., 58 Mont. 485, 193 P. 566; Aetna Life Ins. Co. v. Rustin, 151 Ky. 103, 151 S. W. 366; Jones v. U. S. Mutual Acc. Ass'n, 92 Iowa, 652, 61 N. W. 485; Aetna Life Ins. Co. v. Little, 146 Ark. 70, 225 S. W. 298.

If, however, defendant makes proof that the death occurred as the result of an affray or an encounter, then it is incumbent upon the deceased to take the initiative again and show by other evidence that the death was accidental. Smith v. New York Life Ins. Co. (C. C. A.) 31 F.(2d) 281. And this can be accomplished by showing that the insured was not the aggressor or if he was the aggressor, that he could not in the circumstances reasonably have anticipated that he would be killed. Smith v. New York Life Ins. Co., supra; Occidental Life Ins. Co. v. Holcomb (C. C. A.) 10 F.(2d) 125. In each case if there is any issue of fact as to how the matter occurred, and as to what ought to have reasonably been expected as likely to ensue, the matter is for the jury. Smith v. New York Life Ins. Co., supra; Employers' Indemnity Corp. v. Grant (C. C. A.) 271 F. 136; Aetna Life Ins. Co. v. Gallaway (C. C. A.) 45 F.(2d) 391; Nerrow v. Pacific Mutual Life Ins. Co. (Mo. App.) 294 S. W. 97, 99.

It is true enough that the rule, though not universal, is well established in the federal courts, and in some state courts, that the uncontradicted testimony of a witness not impeached or discredited in any way, to a plain and simple fact capable of contradiction if untrue, does not raise an issue of fact to be...