Preferred Acc. Ins. Co. v. Fielding

• Decision Date: 04 December 1905
• Citation: 35 Colo. 19,83 P. 1013
• Parties: PREFERRED ACC. INS. CO. v. FIELDING.
• Court: Colorado Supreme Court

83 P. 1013

35 Colo. 19

PREFERRED ACC. INS. CO. v. FIELDING.

Supreme Court of Colorado

December 4, 1905

Appeal from District Court, Arapahoe County; Booth M. Malone, Judge.

Action by Thomas Fielding, administrator of William H. Emanuel deceased, against the Preferred Accident Insurance Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Sylvester G. Williams, for appellant.

Fred W Parks and Waldron & Thompson, for appellee.

GABBERT C.J.

Plaintiff claimed that the death of deceased was caused by injuries accidentally received. The first question we shall consider is the contention on behalf of counsel for the defendant that the testimony on the part of the plaintiff failed to establish that these injuries were the result of an accident. A witness testified that he met the deceased about 5 o'clock of the afternoon of April 10, 1901, at a hotel in New York City; that they sat down and talked about half an hour; that he felt badly over his father's death, which had recently occurred, but seemed in perfect health, and was cheerful over his business prospects; that deceased left him about 6 o'clock, saying that he had to meet his brother. About 10:30 that evening his brother found him in bed, sick at a hotel, claiming that he was ill from natural causes. His brother slept that night in a room adjoining his, and left him next morning about 6:30 for the purpose of meeting the vessel which was to arrive from England, bearing the remains of their father. The deceased was too sick to go with him, subsequently went to the home of their deceased father, reaching there about 7 o'clock that evening. From that time up to the hour of his death he was confined to the house, except for a short time on the day of his arrival he visited a nearby club, and again on Friday, April 12th, visited the club and a drug store a few blocks distant. His actions from the time of his arrival indicated that he was suffering intense pain. On Sunday, April 14th, burns were discovered on his body, which according to the testimony of a physician were then two or three day old and were caused or produced either by acids, molten iron, or direct contact with a red-hot object. The deceased claimed that he had not been injured in any way, but rather that what was designated burns upon his body were the result of natural causes. He probably procured a lotion at the drug store which he applied to his injuries prior to the date when a physician was called, but his hands were not injured or discolored.

The policy sued upon provides that the defendant company 'doth insure * * * against the effects of bodily injuries caused solely by external violent, and accidental means, to wit: * * * (d) If death shall result solely from such injuries, * * * the said company will pay the sum of five thousand dollars ($5,000.00). * * *' In actions on policies of insurance of this character the burden of proof is upon the plaintiff to show that the death of the assured was caused by external violence, and by accidental means. But when is this burden discharged, in making a prima facie case? When death by unexplained violent external means is established. The law does not presume suicide or murder; it does not presume that injuries are inflicted intentionally by the deceased, or by some third person; and hence, with the proof indicated, by reason of the presumption which attaches against self-destruction or the violation of the law, prima facie proof is also made of the fact that the injuries were accidental, without direct or positive testimony on that point. Travelers' Ins. Co. v. McConkey, 127 U.S. 661, 8 S.Ct. 1360, 32 L.Ed. 308; Lampkin v. Travelers' Ins.

Co., 11 Colo.App. 249, 52 P. 1040; Cronkhite v. Travelers' Ins. Co., 75 Wis. 116, 43 N.W. 731, 17 Am.St.Rep. 184; Jones v. Accident Ass'n, 92 Iowa 652, 61 N.W. 485; Stephenson v. Bankers' Life Ass'n (Iowa) 79 N.W. 459; Insurance Co. v. Bennett, 90 Tenn. 256, 16 S.W. 723, 25 Am.St.Rep. 685; Travelers' Ins. Co. v. Sheppard, 85 Ga. 751, 802, 12 S.E. 18; 1 Beach on Insurance, § 259; Mallory v. Travelers' Ins. Co., 47 N.Y. 52, 7 Am.Rep. 410; Couadeau v. American Accident Co., 95 Ky. 280, 25 S.W. 6.

But it is urged by counsel for defendant that from the testimony the inference might be drawn that the injuries were not the result of an accident. In support of this contention our attention is directed to the fact that the deceased claimed that he had not been injured, but that what was said to be burns upon his body resulted from natural causes; that in attempting to treat himself he may have applied lotions which caused what was afterwards denominated burns upon his body; and that the injuries may have been inflicted intentionally by some one in circumstances which the deceased did not care to disclose. If it be conceded that the statements of the deceased that he had not been injured are material (a question, however, which we do not determine), we are of the opinion that none of the inferences which counsel attempt to deduce from the testimony will justify the conclusion that the verdict of the jury to the effect that the injuries to deceased were accidentally received, is not supported by the evidence. We think the testimony is conclusive that deceased had been burned or injured in one of the ways indicated by the physician. It must be inferred from the testimony that he received his injuries either between 6 and 10:30 p. m. April 10th, or between 6:30 a. m. and 7:30 p. m. of the next day. A short time prior to the first date he was in good health. It is not rational to presume that he would intentionally cause the injuries inflicted, nor is there any testimony tending to prove that these injuries were inflicted by some third person. Giving the testimony and the inferences which might be drawn the widest scope, the most that can be said is that it is possible the injuries were not accidentally received; but it falls far short of establishing conclusively that they were intentionally inflicted by the deceased or some third person. On the contrary, under the rules which obtain in cases of this character, it at least supports the presumption that the deceased was accidentally injured. In such circumstances it was, therefore, the province of the jury under the settled rules of evidence, from the testimony, the facts, and circumstances, to determine whether or not the injuries were accidental, when the testimony elicited on that subject was consistent with the theory of an accident. Travelers' Ins. Co. v. McConkey, supra; Stephenson v. Bankers' Life Ass'n, supra; Standard Life & Acc. L. & S. Co. v. Thornton, 40 C.C.A. 564, 100 F. 582, 49 L.R.A. 116; Fidelity & Cas. Co. v. Love, 111 F. 773, 49 C.C.A. 602; Jenkins v. Pac., etc., Ins. Co., 131 Cal. 121, 63 P. 180; Guldenkrich v. U.S. Mut. Acc. Ass'n (City Ct. N.Y.) 5 N.Y.S. 429. Each individual case must be judged by its own facts and circumstances. Had deceased been shot or stabbed, it might have been said, in the absence of an eyewitness, that possibly he intentionally wounded himself, or that some one else intentionally did so; but these possibilities would not, of themselves, be sufficient to overcome the presumption against self-destruction or murder. Such a case might be stronger in favor of the theory of accident than the case at bar, but in principle it is no different on the subject of what is prima facie established upon proof of death from violent external injuries.

The policy of insurance also provided that the defendant should not be liable for the death of the insured, except his death 'resulted proximately and solely from accidental causes.' The testimony on the subject that the injuries of deceased were the sole and proximate cause of his death was conflicting. It can be of no particular benefit to undertake to state in substance what the testimony was on this subject. The jury were the judges of the credibility of the witnesses and the weight to be given their statements. There was testimony to the effect that the results which followed the injury as its necessary consequence, and which would not have...