New York Acc. Ins. Co. v. Clayton, 320.

• Decision Date: 04 December 1893
• Docket Number: 320.
• Citation: 59 F. 559
• Parties: NEW YORK ACC. INS. CO. OF CITY OF NEW YORK v. CLAYTON.
• Court: U.S. Court of Appeals — Eighth Circuit

59 F. 559

NEW YORK ACC. INS. CO. OF CITY OF NEW YORK v. CLAYTON.

No. 320.

United States Court of Appeals, Eighth Circuit.

December 4, 1893

William H. Dowe, Grant R. Bennett, William D. Rusk, and J. M Johnson, for plaintiff in error.

H. K White, S. P. Huston, and T. H. Parrish, for defendant in error.

Before CALDWELL and SANBORN, Circuit Judges.

SANBORN Circuit Judge.

George W. Clayton, the defendant in error, brought an action upon a policy of accident insurance issued by the New York Accident Insurance Company of the City of New York, the plaintiff in error, to recover $2,500 for the loss of his right foot by the accidental discharge of a shotgun. The case was tried to a jury, and a judgment rendered against the company.

One of the defenses to the action was that the policy contained a stipulation that 'this policy does not cover injuries fatal or otherwise, caused wholly or in part, directly or indirectly, by any of the following causes: * * * Violating the law;' and that when the accident happened the insured was hunting game on Sunday, in violation of section 3852 of the Revised Statutes of Missouri, 1889, which provides that:

'Every person who shall either labor himself, or compel or permit his apprentice or servant or any other person under his charge or control to labor or perform any work other than the household offices of daily necessity, or other works of necessity or charity, or who shall be guilty of hunting game or shooting on the first day of the week, commonly called Sunday, shall be deemed guilty of a misdemeanor, and fined not exceeding fifty dollars.'

There was evidence in support of this defense. The court charged the jury that, in order to avail itself of this defense, the company must prove it beyond a reasonable doubt. This was clearly erroneous. Where a criminal act is alleged in a civil suit, proof beyond a reasonable doubt is not required to warrant a verdict and decision in support of the allegation. A preponderance of the evidence is sufficient. This is so well settled by the authorities in this country that it does not permit discussion. U.S. v. Shapleigh, 4 C. C. A. 237, 54 F. 126, 134; 1 Greenl. Ev. § 13a, note; Kane v Insurance Co., 17 Amer. Law Reg. (N. S.) 293, 297; Insurance Co. v. Wilson, 7 Wis. 169; Blaeser v. Insurance Co., 37 Wis. 31; Knowles v. Scribner, 57 Me. 495; Hoffman v. Insurance Co., 1 La. Ann. 216; Schmidt v. Insurance Co., 1 Gray, 529; Young v. Edwards, 72 Pa. St. 257, 267; Insurance Co. v. Johnson, 11 Bush, 587; Rothschild v. Insurance Co., 62 Mo. 356; Bradish v. Bliss, 35 Vt. 326; Ellis v. Buzzell, 60 Me. 209; Folsom v. Brawn, 5 Fost. (N. H.) 114; Matthews v. Huntley, 9 N. H. 146; Welch v. Jugenheimer, 56 Iowa, 11, 8 N.W. 673.

Another defense pleaded in the answer was that in his application for insurance the insured had warranted that he was a merchant when in fact he was a junk dealer; that a junk dealer belonged to a more hazardous class than a merchant, and could obtain from this company but $300 insurance...