New York Life Insurance Co. v. McNeely

Citation52 Ariz. 181,79 P.2d 948
Decision Date06 June 1938
Docket NumberCivil 3957
PartiesNEW YORK LIFE INSURANCE COMPANY, a Corporation, Appellant, v. LILLIAN McNEELY, 0,1 , Appellee
CourtSupreme Court of Arizona

APPEAL from a judgment of the Superior Court of the County of Yavapai. Levi S. Udall, Judge. Judgment reversed and case remanded for new trial.

Messrs Ellinwood & Ross and Mr. Joseph S. Jenckes, Jr., for Appellant.

Messrs Favour & Baker and Mr. A. M. Crawford, for Appellee.

OPINION

LOCKWOOD, J.

This is an appeal by New York Life Insurance Company, a corporation, hereinafter called defendant, from a judgment on an insurance policy issued by it on the life of Howard B McNeely, and in favor of Lillian McNeely, hereinafter called plaintiff. There is singularly little dispute in the actual facts shown by the evidence, the real question being as to the permissible inferences to be drawn therefrom. These facts, so far as material to a decision, may be stated as follows:

On August 8, 1930, defendant issued to Howard B. McNeely a policy of life insurance, in the amount of three thousand dollars, payable upon receipt of due proof of death, and three thousand dollars, in addition, payable upon due proof that the death resulted from accident as defined under the provisions of the policy relating to such double indemnity. These provisions, so far as material to the case, read as follows:

"The Double Indemnity provided on the first page hereof shall be payable upon receipt of due proof that the death of the Insured resulted directly and independently of all other causes from bodily injury effected solely through external, violent and accidental means and occurred within ninety days after such injury.

"Double Indemnity shall not be payable if the Insured's death resulted from self-destruction, whether sane or insane; from the taking of poison or inhaling of gas, whether voluntary or otherwise; from committing an assault or felony; from war or any act incident thereto; from engaging in riot or insurrection; from participation as a passenger or otherwise in aviation or aeronautics; or, directly or indirectly, from infirmity of mind or body, from illness or disease, or from any bacterial infection other than bacterial infection occurring in consequence of accidental and external bodily injury...."

On Friday, April 19, 1935, McNeely's wife, now Mrs. Geneva Damant, met him in the afternoon at their home in Prescott, and about ten or fifteen minutes later he left in his automobile. About 10 or 11 o'clock that night he telephoned to her, and was neither seen nor heard from again during his lifetime. On the morning of Saturday, April 20th, his automobile was found on the Prescott-Phoenix highway, about two miles south of Congress Junction, and about one hundred yards north of the Sunrise Service Station. This highway runs in a general north and south direction, and a culvert crosses under the road at the point where the car was found. At each end of said culvert is a concrete abutment which extends about six inches above the highway grade. The car was headed in a northeasterly direction, partially resting on or against the abutment on the east side of the highway, the left front wheel hanging over the concrete abutment. This wheel and the front axle were bent, and a fender somewhat damaged. No glass was broken nor were there any marks of collision; the steering wheel was not damaged, and there was no evidence of any injury on the inside of the car. On the next morning the body of insured was discovered about two hundred fifteen feet from the highway where the car was found. Decomposition had commenced, discoloration was setting in, and flies and maggots were already at work. There was no evidence of any bruise, bump, contusion or abrasion on the head or other part of the body, except a slight discoloration near his right ear and on the back of his right hand. There were bubbles of froth or blood of some kind coming from his lips, and a little dried blood on his face that had apparently come from the right ear. In the pocket of his clothing were found two letters and a will, in his own handwriting. These documents were offered in evidence by defendant, but were excluded by the court, and we shall refer to them later in this opinion. An inquest was thereafter held and a death certificate filed by the coroner, which stated among other things:

"The principal cause of death and related causes of importance were as follows: Automobile accident.

"Manner of Injury -- back of head."

McNeely's body was taken to Prescott and embalmed, and later an autopsy was performed thereon at the request of his wife and mother. This autopsy showed that the whole body was greatly dehydrated, so far as the outside tissues were concerned; there was no sign on the head of any contusion or injury, no bleeding from the mouth, nose nor ears that would indicate a fracture of the skull, and no depression on the skull such as might have resulted from a severe blow over the bones of the head. The bones of the neck and vertebrae were intact, and there was no indication of any contusion or severe injury of the chest or other parts of the body. All of the abdominal organs were apparently normal, with the exception that the lateral half of the stomach was definitely charred and darkened, and the tissues gave the appearance of having been cauterized. Proof of death was duly made, and defendant admitted liability on the ordinary life policy and paid the amount due under that to plaintiff, which was accepted by her, defendant disclaiming liability for double indemnity. The case was tried to a jury which rendered a verdict in favor of plaintiff, and from the verdict this appeal was taken.

There are a number of assignments of error, but we think it necessary to discuss only two at length, which are that the court erred in refusing to admit the letters and will, and that the evidence is not sufficient to show that the insured met his death under circumstances covered by the double indemnity provisions of the policy.

It will be seen by referring to the double indemnity provision above set forth, that it was payable only on proof that the death of the insured resulted directly and independently of all other causes from bodily injury effected solely by external, violent and accidental means. Under a provision of this kind, it is necessary not only that the beneficiary of the policy prove the death of the insured, but also prove affirmatively, by a preponderance of the evidence, that such insured came to his death by reason of the specific causes set forth in the policy, and from those causes only. Radius v. Travelers Ins. Co., (9 Cir.) 87 F.2d 412; Washington Nat. Ins. Co. v. Chavez, (Tex. Civ. App.) 106 S.W.2d 751. Plaintiff, recognizing this rule, set forth in her complaint:

"That on or about April 20th, 1935, the insured, Howard B. McNeely, without design on his part received, in an automobile collision through external, violent and accidental means, bodily injuries of an internal and not definitely ascertainable nature, which killed him and from which he died within a few hours."

Defendant admitted the execution of the policy, and that plaintiff was the beneficiary thereunder; that proof of death of the insured had been sent to it, and that it had paid to the plaintiff a certain sum which was admittedly due on the ordinary life features of the policy, and then denied generally all of the other allegations of the complaint. It also set up three affirmative defenses, which we need not specify. The case came to trial and the plaintiff offered certain evidence and then rested. Defendant then offered evidence which tended to show affirmatively that the death of insured was due to suicide, and not to an automobile accident, as contended by plaintiff. Among other things in support of this theory, it offered to prove his condition at the last time that he was seen, various remarks which he made to his wife then, and particularly offered the two letters and the will which were found upon his person. These documents read as follows:

"defendant's Exhibit D.

(Envelope)

"The Ahrmon Audit Company,

"Accountants and Auditors,

"Bashford Building,

"Prescott Arizona.

"Mrs. Geneva McNeely

"To be opened personally.

(Letter)

"Dear Geneva:

"I have loved you dearly, and I hope, tho' do not expect that you have felt the same toward me. Consequently, and not in the very far future I suspect that you will marry again and be happy. If it were you, I know I could not, however, knowing how you feel (that is, all is a playhouse and such) you will probably not miss me in the least. I hope, however, against hope that your future children have not sandy hair and pigeon toes. Green Eyes I wish for, but do not expect.

"With the greatest of love and all happiness.

"HOWARD.

"As well as you may, and as well as you can, please, for any affection you hold for me, look after Mother.

"Your little baby HOWIE."

"Defendant's Exhibit E.

(Envelope)

"The Harmon Audit Company,

"Accountants and Auditors,

"Bashford Building,

"Prescott, Arizona.

"Mrs. Lillian McNeely

"To be opened personally.

(Letter)

"Dear Mother:

"Please, for my memory and in all you hold dear, look after my darling. You realize that beside you she is all I have really cared for. Forgive me in this and seek to find happiness. This is certainly the hardest, if the shortest way out. I love you both.

"HOWARD.

"Please look after Dad."

"Defendant's Exhibit F.

(Envelope)

"The Harmon Audit Company,

"Accoutants and Auditors,

"Bashford Building,

"Prescott, Arizona.

"Last Will

(Will)

"The last will and testament of Howard Brian McNeely.

"To my father I bequeath the sum of $1, and the fervent...

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