Rowe v. United Commercial Travelers' Ass'n

Decision Date21 May 1919
Docket Number32686
Citation172 N.W. 454,186 Iowa 454
CourtIowa Supreme Court

Appeal from Polk District Court.--L. DEGRAFF, Judge.

ACTION at law, to recover upon a certificate of accident insurance issued by the defendant association to Ted Thomas Rowe. There was a verdict and judgment for plaintiff, and defendant appeals.--Reversed and remanded.

Reversed and remanded.

John A Millener and Sullivan & Sullivan, for appellant.

Miller & Wallingford, for appellee.




Ted Thomas Rowe was a member in good standing of the defendant accident association, and his wife, who is the plaintiff in this action, was his duly appointed beneficiary. On June 26, 1916, while the insured was driving an automobile on the streets of the city of Des Moines, the vehicle was broken down or upset, and he was instantly killed. This action was brought to recover the indemnity provided for in the insurance contract. The defendant denies liability, alleging that the death of Rowe was not caused by accidental means, within the meaning and intent of the contract. The defendant further alleges affirmatively that, by the terms of the contract, the benefits of the insurance "do not cover or extend to any death, disability, or loss resulting from violation of any law, or from voluntary exposure to danger;" and that the indemnity is not payable in any case, "unless external, violent, and accidental means, producing bodily injuries, are the sole and only cause of the death, disability, or loss." It further avers that the death of Rowe "was caused through violation of law and voluntary exposure to danger," and did not result "from bodily injuries through external, violent, and accidental means, as the proximate, sole, and only cause." No fact or circumstance constituting the alleged violation of law or the alleged voluntary exposure to danger is stated or specified in the pleading.

The cause was tried to a jury. At the close of the testimony, defendant moved for a directed verdict in its favor, on the ground that plaintiff had failed to show the death of the insured from injuries by accidental means; and that it had been conclusively shown that his death resulted from voluntary exposure to danger, and from his violation of law in operating his automobile at an unlawful rate of speed. The motion was overruled and, the cause being submitted to the jury, there was a verdict for plaintiff for the amount of the insurance.

I. There is room for serious doubt whether the answer, which alleges voluntary exposure to danger and violation of law by the insured, raises any issue for the jury. Strictly and properly speaking, it does no more than to state a conclusion of law, without disclosing or averring any fact or facts from which that conclusion may be drawn; but, as the sufficiency of such answer does not appear to have been questioned upon the trial below, and the plea seems to have been treated by court and counsel as stating issuable matter, unless it be as to a city ordinance offered in evidence by the appellant, it will be so treated by us in disposing of this appeal.

II. Several propositions urged in argument may be sufficiently considered in connection with the question whether, under the evidence, it can or ought to be said, as a matter of law, that there is no evidence to sustain a finding by the jury that Rowe's death was caused by accidental means.

The testimony shows, without dispute, that the deceased had an automobile, which he was accustomed to drive about the city, and was well acquainted with the streets in the neighborhood where his death occurred. About six o'clock in the afternoon of June 26, 1916, accompanied by a neighbor, one Fisk, he started to drive the car from the business part of town to his home. Soon after starting, they picked up two young women. The car was provided with but two seats, into which the four persons were quite compactly crowded. In this position, they made their way to the northern limit of the city, where they turned back. Their course in returning led them from a street running north and south into one running east and west; and either as they turned, or soon after making the turn and straightening their course into the last-mentioned street, the car was capsized, Rowe was killed, and the other passengers received injuries of a minor character. It appears, also, that one of the wheels of the car was broken down; but whether such break was the cause or the effect of the overturn is not made entirely clear by the evidence, and the jury could have properly found the truth of either theory.

If this were all which the evidence discloses, the objection that the injury to the deceased was not shown to have been caused by accidental means would be trivial and without merit. There was evidence, however, from which the jury might have found that the car was being driven at a high, if not a reckless, rate of speed, and that the collapse or overturn was the result of such imprudence; and it is the defendant's contention that this fact was conclusively established, and that, if so, the injury resulting to the deceased cannot be said to have been occasioned by accidental means. But the record does not sustain appellant's claim as to the conclusive character of the proof of the alleged fact, nor do we think the conclusion of law founded thereon is sustainable. The witnesses Fisk and one of the young women unite in the opinion that, as they approached or turned the corner, they were going at the rate of 35 to 40 miles an hour. On cross-examination, the young lady says that, when they were approaching the corner, and at about the second telephone pole therefrom, Rowe pulled the emergency brake, and that they had turned the corner and were facing west before the breakdown. There was also evidence that, soon after the accident, both of these witnesses had said the car was not moving fast at that time. The other young woman does not attempt to estimate the speed, but says that they had fully turned the corner, and had moved 75 or 80 feet west before the collapse. There was also testimony that the car fell upon its side, where it was poised for an appreciable moment before it turned fully over, and that it was not thrown into the ditch or gutter. Taking the entire showing, it cannot be said to appear without dispute that the car was being operated recklessly at the time of its collapse. Even if it should be true, as might well be found from the record, that the car, as it came down from the north, was being driven at a high or dangerous rate of speed, it was still open to the jury to find or believe that such speed had been reduced, and that the turn of the corner had been safely made, and that the overturn of the car was caused by the breaking of the wheel, or by something other than the rate of speed.

But passing, for the present, the questions of an alleged violation of the law and voluntary exposure to danger, it is yet true that driving the car at a high or unsafe rate of speed, or in a manner to justly convict the insured of negligence, does not necessarily deprive the disaster which he suffered of its character as an accident, nor does it conclusively negative a finding that his injury and death were occasioned by accidental means. Bohaker v. Travelers' Ins. Co., 215 Mass. 32 (102

N.E. 342); Lickleider v. Iowa St. T. M. Assn., 184 Iowa 423, 166 N.W. 363; Hanley v. Fidelity & Cas. Co., 180 Iowa 805, 161 N.W. 114. If the injury to an insured person results, in some greater or less degree, from his own acts, and the evidence be such that the jury may fairly find that such result is one which he did not and could not reasonably have anticipated, and did not intend to produce, it is an accident, and is caused by accidental means. Jenkins v. Hawkeye C. M. Assn., 147 Iowa 113, 117, 124 N.W. 199; Western C. T. Assn. v. Smith, 29 C. C. A. 223 (40 L.R.A. 653).

It follows of necessity, under the proved and admitted facts and circumstances, that the court could not properly have directed a verdict for defendant on the theory of an entire failure of proof of the accidental character of Rowe's death, or of the accidental means thereof.

III. The court charged the jury, in harmony with the appellant's view of the law, that, for plaintiff to recover, she must show both the accidental character and accidental means of the death of her husband; but exception is taken to the charge, on the theory that the court did not properly or sufficiently define or explain to the jury the term, "accidental means."

The charge as given to the jury is not vulnerable to this criticism. The court did state the ultimate facts which must be found to justify a recovery in words almost, if not quite, identical with the appellant's request. It also defined to the jury the meaning of the word "accident," and this, too, was practically in the language of the request; but it declined to add to such definition a statement in these words, which we quote from counsel's request:

"If an injury or death is the result of a man's intentional act, it is not an accident; but if, preceding the injury, something unforeseen, unexpected, and unusual occurs, which produced the injury, then the injury has resulted from accident, or from accidental means. A person may do a certain act, the result of which may produce what is commonly called accidental injury or death; but the means are exactly what the man intended to use and did use and was prepared to use. The means were not accidental, but the result might be accidental."

It is of this ruling that complaint is made. It will be seen therefore,...

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