Schumacher v. National Travelers Benefit Association of Des Moines

• Decision Date: 09 May 1925
• Docket Number: 25,924
• Citation: 235 P. 844,118 Kan. 523
• Parties: CARRIE E. J. SCHUMACHER, Appellant, v. NATIONAL TRAVELERS BENEFIT ASSOCIATION OF DES MOINES, IOWA, Appellee
• Court: Kansas Supreme Court

235 P. 844

118 Kan. 523

CARRIE E. J. SCHUMACHER, Appellant, v. NATIONAL TRAVELERS BENEFIT ASSOCIATION OF DES MOINES, IOWA, Appellee

No. 25,924

Supreme Court of Kansas

May 9, 1925

Decided January, 1925.

Appeal from Ellsworth district court; DALLAS GROVER, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

INSURANCE -- Accident -- Provision Restricting Liability -- Nature and Effect. The following provision contained in an accident insurance policy is not invalid:

"This certificate shall not extend to nor cover nor is any indemnity promised for . . . bodily injuries resulting from the discharge of a firearm, unless the claimant shall establish the accidental cause of the discharge by the testimony of a person other than the injured or the claimant who actually saw the accidental cause in operation."

Ira E. Lloyd, and N. F. Nourse, both of Ellsworth, for the appellant.

Samuel E. Bartlett, of Ellsworth, for the appellee.

Marshall J. Mason, J. concurring specially. Johnston, C. J., Harvey and Hopkins, JJ., dissenting.

OPINION

MARSHALL, J.:

The plaintiff appeals from a judgment in favor of the defendant on an accident insurance policy issued in her favor on the life of her husband, A. H. Schumacher, who died from a gunshot wound.

The policy contained the following provision:

"This certificate shall not extend to nor cover nor is any indemnity promised for injuries sustained while riding a motor cycle, nor injuries received at a time when the assured is under the influence of intoxicating liquors or narcotics, nor injuries received from wars or riots, nor bodily injuries resulting from the discharge of a firearm, unless the claimant shall establish the accidental cause of the discharge by the testimony of a person, other than the injured or the claimant, who actually saw the accidental cause in operation."

No one saw the accident and no other person was present when Schumacher was shot, except a two-year-old child. The defendant pleaded the quoted provision of the policy and alleged that the plaintiff had not submitted adequate proofs of accidental death and was not entitled to recover. The cause was tried to a jury, which returned a verdict in favor of the plaintiff and answered special questions, which were supported by evidence and which showed that the deceased had met his death by the accidental discharge of a shotgun.

The case turns on the validity of the above-quoted provision of the policy. Such provisions have been upheld. (Becker v. Interstate Business Men's Acc. Ass'n, 265 F. 508; Roeh v. Protective Ass'n, 164 Iowa 199, 145 N.W. 479; Moses v. Illinois Commercial Men's Ass'n, 189 Ill.App. 440; Lundberg v. Interstate B. &. M. Acc. Asso., 162 Wis. 474, 156 N.W. 482.) On the other hand, such provisions have been held invalid on the ground that the evidence by which facts can be proved cannot be controlled by contract because such contracts are against public policy. ( Utter v. Insurance Co., 65 Mich. 545, 32 N.W. 812; Rollins v. Business Men's Acc. Assn. of Am., 204 Mo.App. 679, 220 S.W. 1022; Modern Woodmen of America v. Michelin, 101 Okla. 217, 225 P. 163.) It is not pretended that these are the only cases which have been before the courts in this country where the validity of provisions like the one in question in the present case has been considered. In a number of cases where the question has been presented the courts have not directly decided the question, but have decided the cases on matters incidental or collateral to the questioned provision. There is an irreconcilable conflict in the decisions.

This court in Hannon v. United Workmen, 99 Kan. 734, 163 P. 169, said:

"A by-law of a fraternal beneficiary association providing that 'mysterious disappearance or unexplained absence of a member shall never...