New York Life Ins. Co. v. Wood

• Decision Date: 02 May 1938
• Docket Number: 33195
• Court: Mississippi Supreme Court
• Parties: NEW YORK LIFE INS. CO. v. WOOD

180 So. 819

182 Miss. 233

NEW YORK LIFE INS. CO. v. WOOD

No. 33195

Supreme Court of Mississippi

May 2, 1938

Division B

Suggestion Of Error Overruled May 30, 1938.

APPEAL from the circuit court of Oktibbeha county, HON. JOHN C STENNIS, Judge.

Action by Mrs. Jamie T. Wood against the New York Life Insurance Company on the double indemnity provision of a life policy. From a judgment for plaintiff, defendant appeals. Affirmed.

Affirmed.

Loving & Loving, of Columbus, for appellant.

We must assert that under the allegations in the declaration that the plaintiff in the court below, appellee here, did not allege any cause of action under the double indemnity feature of the policy, the defendant, appellant here, having paid into court the amount due under the straight feature of the policy, and in not alleging under the terms of the policy any cause of action shown under the double indemnity clause of the policy, then the defendant in the court below appellee here, was entitled to a peremptory instruction.

Seaboard Mfg. Co. v. Woodson, 94 Ala. 143, 10 So. 87; U. S. Rolling Stock Co. v. Weir, 96 Ala 396, 11 So. 438; Walton v. Lindsey Lbr. Co., 145 Ala. 661, 39 So. 671; Birmingham Rolling Stock Co. v. Rockhold, 42 So. 96; West Pratt Coal Co. v. Andrews, 150 Ala. 368, 43 So. 350; Southern Ry. Co. v. Grace, 95 Miss. 611, 49 So. 835; Inter-Ocean Casualty Co. v. Foster, 226 Ala. 337, 147 So. 127; Andrus v. Business Men's Acci. Asso., 223 S.W. 70, 13 A.L.R. 779; Martin v. Interstate Business Men's Acc. Ass'n., 187 Iowa 869, 174 N.W. 577; Maryland Casualty Co. v. Hudgins, 97 Tex. 124, 76 S.W. 745, 1 Ann. Cas. 252, 104 A. S. R. 857; U. S. F. & G. Co. v. Hood, 124 Miss. 548, 15 A.L.R. 605, 87 So. 115; Christ v. Pacific Mut. L. Ins. Co., 312 Ill. 525, 35 A.L.R. 730, 144 N.E. 161; Carnes v. Iowa State Traveling Men's Assn., 106 Iowa 281, 68 A. S. R. 306; Landress v. Phoenix Mutual Life Iris. Co. and Travelers Ins. Co., 291 U.S. 491, 78 L.Ed. 934.

The plaintiff in the court below, appellee here, having sued under the double indemnity clause of the policy and attempted to make allegations thereunder, which we do not consider sufficient to entitle her to recover and the burden of proof is on her to show that the death of the deceased was effected through "bodily injury effected solely through external, violent and accidental cause, and that such death occurred within sixty days after sustaining such injury," and having failed to show this, we must submit that she is not entitled to recover.

Whitlatch v. Casualty Co., 149 N.Y. 45, 43 N.E. 405; Fidelity & Casualty Co. of New York v. Weise, 182 Ill. 496, 55 N.E. 540; Travelers Ins. Co. v. McConkey, 127 U.S. 661, 8 S.Ct. 1360, 32 L.Ed. 308; Jefferson Standard Life Ins. Co. v. Jefcoats, 164 Miss. 659, 143 So. 842.

We wish to call the court's attention to the exceptions to the double indemnity clauses in the policy, that is, the death must result directly and independently of all other causes from bodily injury effected solely through external, violent and accidental cause, with several other exceptions named. The exception material to this case being: "If death result from self-destruction, whether sane or insane; . . . from physical of mental infirmity; of directly or indirectly from illness of disease of any kind." Now, from the evidence the death of the insured resulted from his taking bromidia, and a l the evidence in the record in reference to his taking it shows that he was taking it intentionally. The evidence also shows that he had been taking it for a week for nervousness, then his death in connection with nervousness and bromidia, is evidently from bis intentionally taking it for an illness of a disease, and that the taking was not an accidental cause as it was taken intentionally, but the result from the taking of the medicine was not what he expected and resulted in bis death, and thus an accidental result, of accidental death. Then, on the other hand, the evidence also shows that he was not in a normal mental condition at the time, but was mentally infirm, and each of these conditions come within the exceptions in the policy and hence the double indemnity does not apply.

We do not think that there is any evidence that any reasonable person could look at and say that Mr. Wood's death was through external, violent and accidental means, but that, if his death was an accidental death, that the death was accidental and not the result of external, violent or accidental cause or accidental means, but was an accidental result and hence not within the double indemnity feature of the policy. The appellant must insist that there is no death in any sense shown from accidental means, and that there is no case of a death from accidental means or accidental causes set forth in the declaration.

Williams v. U. S. Mut. Acc. Assn., 133 N.Y. 366, 31 N.E. 222; Aetna L. Ins. Co. v. Vandecar, 30 C. C. A. 48, 57 U. S. App. 446, 86 F. 282; Tuttle v. Iowa State Traveling Men's Assn., 132 Iowa 654, 7 L.R.A. (N.S.) 223, 104 N.W. 1131; Laessig v. Travelers' Protective Assn., 169 Mo. 280, 69 S.W. 469; Lamport v. Aetna L. Ins. Co., 199 S.W. 1024; Brunswick v. Standard Acc. Ins. Co., 278 Mo. 154, 213 S.W. 45, 7 A.L.R. 1213; Continental Casualty Co. v. Hardenbergh, 121 Miss. 1, 83 So. 278.

Joseph S. Rice, of Starkville, for appellee.

The Supreme Court of Louisiana held as cited in 45 L.R.A. 1923, "to prevent recovery on the ground that insured committed suicide, where the evidente as to the cause of the death was circumstantial, the circumstances must be such as to exclude every reasonable hypotheses that death was accidental."

Valesi v. Mutual Life Ins. Co., 151 La. 405, 91 So. 818; Canal-Commercial Trust & Sav. Bank v. Employers' Liability Assur. Corp., 155 La. 720, 99 So. 542.

Death caused by an excessive dose of medicine prescribed by a physician is a death from external, violent and accidental means within the terms of the policy.

Dezell v. Fidelity & C. Co., 176 Mo. 253, 75 S.W. 1102; Brown v. Continental Casualty Co., 108 So. 464; 45 A.L.R. 1521.

Death resulting from taking poison by mistake is a death from external, violent and accidental means.

Healey v. Mutual Acc. Assn., 133 Ill. 556, 9 L.R.A. 371, 23 A. S. R. 637, 25 N.E. 52; 45 A.L.R. 1527.

This court seems to have never decided a case exactly parallel to this but you have construed by your opinion in the case of North American Accident Insurance Company v. Henderson, 177 So. 529; "accidental means" which is correlative to this case.

Lickleider v. Iowa, etc., Assn., 184 Iowa 423, 166 N.W. 363, 168 N.W. 884, 3 A.L.R. 1295; Lewis v. Ocean, etc., Corp. 224 N.Y. 18, 120 N.E. 56, 7 A.L.R. 1129.

There is a legal presumption that a Wound was not intentionally inflicted either by the wounded person himself or by a third person, and this presumption is available as affirmative evidence from which a jury may draw the inference that the wound was caused by accidental means.

Caldwell v. Iowa State Traveling Men's Assn., 156 Iowa 327, 136 N.W. 678; Jones v. U. S. Mut. Acc. Assn., 92 Iowa 654, 61 N.W. 485; Connell v. Iowa State Traveling Men's Assn., 139 Iowa 444, 116 N.W. 820; Travelers Ins. Co. v. McConkey, 127 U.S. 661, 32 L.Ed. 308, 8 S.Ct. 1360; Cronkhite v. Travelers Ins. Co., 75 Wis. 116, 17 A. S. R. 184, 43 N.W. 731; Freeman v. Travelers Ins. Co., 144 Mass. 572, 12 N.E. 372; Aetna L. Ins. Co. v. Milward, 118 Ky. 716, 68 L.R.A. 285, 82 S.W. 364, 4 Ann. Cas. 1092; Preferred Acc. Ins. Co. v. Fielding, 35 Colo. 19, 83 P. 1013, 9 Ann. Cas. 916; Western Travelers' Acc. Assn. v. Munson, 73 Neb. 858, 1 L.R.A. (N.S.) 1068, 103 N.W. 688; 1 C. J. 495; Western Travelers Acc. Assn. v. Holbrook, 65 Neb. 469, 91 N.W. 276, 94 N.W. 816.

In an action upon a policy of accident insurance, where the question of the cause of the death of the insured is submitted to the jury, a reviewing court will not set aside the verdict unless ir is shown to be clearly wrong.

Rathjen v. Woodmen Acc. Assn., 93 Neb. 629, 141 N.W. 815; Modern Woodman Acc. Assn. v. Shryock, 54 Neb. 250, 39 L.R.A. 826, 74 N.W. 607; Western Travelers Acc. Assn. v. Holbrook, 65 Neb. 469, 91 N.W. 276, 94 N.W. 816; Moon v. Order of United Commercial Travelers, 96 Neb. 65, 52 L.R.A. (N.S.) 1203, 146 N.W. 1037, Ann. Cas. 1916B 222.

The burden is upon the plaintiff to show that the death was accidental, or, in other words, that it was not suicidal. This he must do by evidence of the actual facts or a situation from which accident is the reasonable inference, not a reasonable inference or possible one.

Brunswick v. Standard Acc. Ins. Co., 213 S.W. 45, 7 A.L.R. 1228.

A policy insured against bodily injuries sustained through external, violent, or accidental means, but provided that it did not cover injuries resulting from anything accidentally or otherwise taken, administered, absorbed, or inhaled. Held, that the exception did not preclude a recovery for unintentional death caused by medicine, even though containing poison, taken or administered in good faith to alleviate physical pain. Dezell v. Fidelity & Casualty Co., 75 S.W. 1102.

Brown v. Continental Casualty Co., 108 So. 464, 45 A.L.R. 1527; Equitable Life Assur. Soc. of the U. S. v. Hemenover, 67 P.2d 80; Manbacker v. Prudential Ins. Co. of America, 7 N.E.2d 18, 111 A.L.R. 618.

The plaintiff's case comes within the coverage of this policy. Her husband intended to take veronal, but he never intended to take a lethal dose nor did he intend to take enough to do him any harm; he desired to get relief from pain, not relief from life. He took too much veronal; it was a mistake, a misstep, and unexpected effect from the use of his prescribed medicine. It was an accident, and must have been an accident unless it was intentional....