O'Neill v. Metropolitan Life Ins. Co.

• Decision Date: 29 June 1942
• Docket Number: 319
• Citation: 345 Pa. 232,26 A.2d 898
• Parties: O'Neill et al., Appellants, v. Metropolitan Life Insurance Company
• Court: Pennsylvania Supreme Court

26 A.2d 898

345 Pa. 232

O'Neill et al., Appellants, v. Metropolitan Life Insurance Company

No. 319

Supreme Court of Pennsylvania

June 29, 1942

May 13 1942, Argued

Appeal, No. 319, Jan. T., 1941, from judgment of C.P. No. 2 Phila. Co., Dec. T., 1937, No. 1773, in case of Eleanor F O'Neill et al. v. Metropolitan Life Insurance Company. Judgment affirmed.

Assumpsit. Before ALESSANDRONI, J.

Verdict and judgment for defendant. Plaintiffs appealed.

The judgment is affirmed.

Harry J. Alker, Jr., with him Maxwell Strawbridge, for appellants.

Owen B. Rhoads, with him Joseph S. Clark, Jr., Barnes, Dechert, Price & Smith, and Harry Cole Bates, for appellee.

Before SCHAFFER, C.J.; MAXEY, DREW, STERN, PATTERSON and PARKER, JJ.

OPINION

MR. JUSTICE MAXEY:

This is an appeal from the refusal of the court below to grant plaintiffs a new trial. The plaintiffs, Eleanor F. O'Neill and Montgomery Trust Company, guardian of the estates of Mary K. O'Neill and Margaret E. O'Neill, minors, brought suit against the Metropolitan Life Insurance Company for $50,000, with interest from May 29, 1937. The claim was based on three policies of insurance, herein designated respectively as policies A, B, and C, insuring the life of Dennis A. O'Neill, husband of Eleanor F. O'Neill and father of the two minors above named, in the respective sums of $20,000, $25,000, and $5,000. Policy A was dated January 28, 1930; the other two policies were dated November 20, 1934. Attached to policy A was a "rider" agreeing to pay "to the beneficiaries . . . in addition to the amount payable according to the terms of said policy" the sum of $20,000, "upon receipt . . . of due proof of the death of the insured, as the result, directly and independently of all other causes, of bodily injuries sustained through external, violent and accidental means, provided (1) . . . (2) . . . (3) . . . (4) . . . (5) . . . (6) that death shall not have resulted from bodily injuries sustained while participating in aviation or aeronautics except as a fare-paying passenger, nor while the insured is in the Military or Naval Service in time of war, nor as the result of violation of law by the insured." Policies B and C had "riders" attached to them containing the same provision as to paying additional amounts in the sums respectively of $25,000 and $5,000 upon the same "due proof of death through external, violent and accidental means, provided (1) . . . (2) . . . (3) . . . (4) . . . (5) . . . (6) that death shall not have resulted from bodily injuries sustained while participating in aviation or aeronautics, except as a fare-paying passenger on a licensed aircraft operated by a licensed pilot, nor sustained while or as a result of participating in or attempting to commit an assault or felony, nor sustained while the insured is in the Military or Naval Service in time of war."

Plaintiffs' statement of claim sets forth, inter alia: "The said Dennis A. O'Neill died on May 29, 1937, in his thirty-eighth year, while the policies and supplemental contracts thereto were in full force and effect, . . . The said death was due directly and independently of all other causes to bodily injuries sustained through external, violent and accidental means, and was not the result of self destruction, or caused by or contributed to, directly or indirectly, or wholly or partly, by disease, or by bodily or mental infirmity, and did not result from bodily injuries sustained while participating in aviation or aeronautics, nor sustained while or as a result of participating in or attempting to commit an assault or felony, nor while the insured was in Military or Naval Service in time of war, nor as the result of violation of law by the insured.

Due proofs of the insured's death were filed with the defendant and the face of the policies totaling $50,000 was paid to the plaintiffs but payment of the additional total sum of $50,000 claimed was refused."

At the trial the widow plaintiff testified that during the early morning of May 29, 1937, she and her husband returned to their home in Norristown after having spent the preceding hours at an Inn. She and her husband then quarrelled and after "pushing him away" she went to the side porch of their home. She then heard one of her children crying upstairs and she ascended the stairway and there noticed blood on the wall. She met her father and from what her father told her she "realized her husband was hurt" and she then summoned a physician. She then saw her husband "lying on the floor unconscious". Shortly after the physician arrived, her husband died.

Mrs. O'Neill's father, Joseph J. McGinley, who was sixty-nine years of age at the time of the insured's death, testified that on the morning above identified he "heard a noise" and "rushed out of" his room to the hallway. "It was dark" and the witness' eyes were "not so good". He "became excited . . . thinking it might be a kidnapping or robbery". He "rushed back to his room and turned on the light", picked up his razor and "started pell-mell for the first floor". He added: "Near the top of the steps I ran into an object. I did not know who it was. I could not see in the dark." He and a man "grabbed each other" and "both went down twelve flights of steps head over heels." He said: "I was lying on the broad of my back . . . and Dennis O'Neill was lying on my feet. I was the heaviest of the two." A short time later O'Neill went to the living-room and the witness went upstairs and shortly afterwards the doctor came and told the witness "that O'Neill was dead".

Dr. McCarthy described the fatal wound as "a four inch gash in his neck, exposing [on the left side] the carotid artery, which was severed", resulting in a hemorrhage.

On cross-examination both Mrs. O'Neill and her father were asked if they had not within an hour or two of O'Neill's death given an entirely different version of this tragic happening. The other version as allegedly given to H. A. Cressman, reporter for the Norristown Times-Herald, and to others was that O'Neill had become intoxicated at Bungalow Inn and had quarrelled with Mrs. O'Neill. He had driven her home, ordered her out of the car and he then drove away. Later after Mrs. O'Neill had undressed, O'Neill returned and in a belligerent mood, called to his wife to come downstairs. She refused to do so. She finally went downstairs, to try to quiet her husband. He struck her and put her out of the house, though she was clad only in undergarments. McGinley had awakened and heard O'Neill strike Mrs. O'Neill and heard him declare he was going upstairs to put McGinley out of the house. McGinley then seized his razor in self-protection and stood at the top of the stairs. After O'Neill struck McGinley twice in the face, despite the latter's remonstrance, McGinley in self-defense struck at O'Neill, causing the fatal injury described. Witnesses Harper, Murphy, Eiler and Flynn gave testimony substantially similar to Cressman's. Edward Murphy, an investigator for the defendant company, testified that in a conversation with Mrs. O'Neill on or about August 26, 1937, in which she told him about her husband's "pushing her down the stairs" on the morning in question and "striking her twice very severely and put her outside" and that he threatened to "go upstairs and get that old man of yours and put him out too." Witness McGlathery testified that when O'Neill left the Inn on the morning in question "he felt his drinks" and "talked very nasty, seemed to be provoked". The jury found for the defendant.

Appellant complains that the trial judge did not submit this case to the jury under proper instructions. The fifth assignment of error is based upon the instruction to the jury that "the plaintiffs must [in respect to policies B and C] show to your satisfaction by a preponderance of the evidence that Dennis A. O'Neill in each of the policies as the provisions read, did not die while or as a result of participating in or attempting to commit an assault or felony" and [in respect to policy A] that death was not "the result from bodily injuries . . . or violation of law" by the insured.

Recovery of the sums sued for in this case required proof of the death of the insured, "as a result, directly and independently of all other causes, of bodily injury sustained through external, violent and accidental means". In Watkins v. Prudential Insurance Co., 315 Pa. 497, 512, 173 A 644 (where death "through external, violent and accidental means" was claimed) we held that "on plaintiff rests the burden of proving all the operative facts by a fair preponderance of the evidence." In Erb v. Commercial M. Acc. Co., 232 Pa. 215, 81 A. 207, this court declared that " the death of an insured would not be effected by accidental means if it were the natural and probable consequence of his own act, and should have been foreseen." In Horan, Jr., v. Prudential Ins. Co. of Am., 104 Pa.Super. 474, 159 A. 69, the Superior Court in an opinion by Judge BALDRIGE stated that in a case where the question is: Did the insured meet his death "by accidental means"? ^[1] "the answer depends on whether the insured culpably provoked or induced the act which resulted in his death". In Camp. Ad. v. Prud. Ins. Co. of A., 107 Pa.Super. 342, 348, 163 A. 320, there was cited with approval the case of Taliaferro v. Travelers' Protective Association of America, 80 F. 368, holding that where the insured brings about an assault upon himself by his own wrongful act, or where he, under such circumstances that he would naturally be presumed to know that the injury is likely to be inflicted, voluntarily incurs an obvious hazard of this character, or places himself in a position that may be reasonably expected to bring about an assault upon him,...