Stevens v. Continental Casualty Company

• Decision Date: 30 November 1903
• Court: North Dakota Supreme Court

97 N.W. 862

12 N.D. 463

EDWARD STEVENS AND MARGARET POLLY STEVENS, MINORS, BY DAVID W. SHIELDS, THEIR GUARDIAN v. CONTINENTAL CASUALTY COMPANY

Supreme Court of North Dakota

November 30, 1903

Appeal from District Court, Cass county; Pollock, J.

Action by Edward and Polly Stevens, by their guardian, against the Continental Casualty Company. Judgment for plaintiffs, and defendant appeals.

Affirmed.

Ball Watson & Maclay, for appellant.

The statements contained in the proofs of death, standing without explanation or denial, conclusively establish that the insured died as the result of a pistol-shot wound inflicted upon him by a person whom he had ejected from his train. Mutual Benefit Ins. Co. v. Newton, 89 U.S. 32, 22 L.Ed. 793; Lodge v. Beck, 181 U.S. 49, 56; Hassencamp v. Insurance Co., 120 F. 475; Spruill v. Insurance Co., 27 N.E. 39; Hart v. Lodge, 84 N.W. 85; Walther v. Mutual Ins. Co., 4 P. 413; Hanna v. Conn. Mut. Life Ins. Co., 44 N.E. 1099.

The law presumes that a man intends the natural and probable consequences of his acts. There is also a presumption that men's acts are intentional. Northwestern Benev Society of Duluth v. Dudley, 61 N.E. 207; People v Langton, 67 Cal. 427, 7 P. 643.

Even in a trial for murder, from the proof of killing with a deadly weapon, the law implies an intent to kill. Conway v Reed, 66 Mo. 354; People v. Newcomer, 50 P. 405; State v. Silk, 44 S.W. 76.

Acts and conduct of parties are the best indices as to intent or purpose of mind. Insurance Co. v. Smith, 71 S.W. 391.

There is no fact or circumstance in evidence upon which a guess could be based. At the utmost all that can be said is, that there is a possibility that the man who shot Stevens discharged his pistol accidentally, or for the purpose of frightening him. But it cannot be said that the evidence tends to prove any such theory or would justify such a conclusion on the part of the jury. Butero v. Travelers Acc. Ins. Co. of Hartford, Conn., 71 N.W. 811; Orr v. Insurance Co., 24 So. 997; Insurance Co. v. Hayward, 34 S.W. 801; Insurance Co. v. Smith, 71 S.W. 391; Johnson v. Insurance Co., 39 S.W. 972.

There is not even a scintilla of evidence upon which the verdict can rest. But even if the possibility that the shooting was really accidental, can be considered evidence at all, it is too slight and inconclusive in its nature to go to the jury. Bowman v. Eppinger, 1 N.D. 21, 44 N.W. 1000.

Morrill & Engerud, for respondents.

The proviso under which appellant contends that it is relieved from full liability, is an exception to the general policy, and the burden is upon the defendant to establish the fact, that the insured came to his death from an injury intentionally inflicted by another person. Home Benefit Association v. Sargent, 142 U.S. 691, 12 S.Ct. 332, 35 L.Ed. 1160; Jones v. U. S. Mut. Acc. Ass'n, 61 N.W. 485; Railway Official and Employes Acc. Ass'n. v. Drummond, 76 N.W. 562; Anthony v. Mercantile Mut. Acc. Ass'n, 38 N.E. 973; Goldschmidt v. Mut. Life Ins. Co. of New York, 102 N.Y. 486, 7 N.E. 408.

This is the rule in the courts of the United States and different states, and some go so far as to hold that such defense must be proved beyond a reasonable doubt. Decker v. Somerest Mut. Fire Co., 66 Me. 406; Lexington F. M. & L. Ins. Co. v. Paver, 16 Ohio 324; McConnell v. Delaware Mut. Ins. Co., 18 Ill. 228.

In case of suicide the presumption is against it. Mallory v. Travelers Ins. Co., 47 N.Y. 52; Keels v. Mut. Reserve F. L. Ass'n, 29 F. 198.

It cannot be presumed that the person shooting did so with intent to injure the insured; so in doubtful cases the presumption should be against such intent. Jones v. U. S. Mut. Acc. Ass'n, supra.

An accident within the meaning of contracts of this kind includes any event which takes place without the foresight or expectation of the person affected thereby. Railway Employes Ass'n, etc., v. Drummond, supra; Button v. American Mut. Acc. Ass'n, 65 N.W. 861; Richard v. Ins. Co., 20 N.E. 347; McGlinchey v. Casualty Co., 14 A. 13; Lovelace v. Travelers Pro. Ass'n, 28 S.W. 877; Fidelity and Casualty Co. v. Johnson, 17 So. Rep. 2; Anderson's Law Dictionary; Bouvier's Law Dictionary.

The statements made by the guardian, Mr. Shields, were made without any personal knowledge of the facts, as he fully explains in his testimony. These proofs are not to be taken as conclusive, and are subject to explanation. The Home Benefit Ass'n v. Sargent, supra; Utter v. Travelers Ins. Co., 32 N.W. 812; Coburn v. Travelers Ins. Co., 13 N.E. 604; Freeman v. Travelers Ins. Co., 12 N.E. 372; Keene v. New England Mutual Acc. Ass'n, 36 N.E. 891; Cornwell v. Fraternal Acc. Ass'n of America, 6 N.D. Rep. 201, 69 N.W. 191.

OPINION

COCHRANE, J.

Edward and Polly Stevens, minor children of Fred W. Stevens deceased, by their guardian, sued to recover the amount of an accident policy issued by the Continental Casualty Company. This policy was for $ 2,000, and stipulated to indemnify the beneficiaries therein named in case of the death of the insured through external, violent, and purely accidental causes, unless such death should result from an injury "intentionally inflicted upon the insured by himself or another person," in which event the beneficiaries were to receive one-tenth of the face of the policy, or $ 200. No question is raised as to the sufficiency of the proofs of death, and it is conceded that they were made in proper time. Plaintiffs, in their complaint, alleged that the insured died from personal injury received solely from accidental causes. The answer denied this averment of the complaint, and defendant alleged "that on or about the 12th day of August, 1902, near Bismarck, in the state of North Dakota, while the said Stevens was engaged in some disagreement, altercation, or fight with some person or persons whom he had expelled or was endeavoring to expel from the passenger train upon which he (the said Stevens) was then employed as a passenger brakeman, one of the said persons (the name of such person being unknown to the defendant) discharged a revolver or a gun loaded with powder and bullet at said Stevens, intentionally, and with the intent of injuring or killing said Stevens, and that said Stevens was thereby so wounded and injured that soon thereafter, on or about the 18th day of August, 1902, he died therefrom, and on account of the wound and injury so received by him as aforesaid." Defendant offered to allow judgment to be taken against it for $ 200, with interest and costs. Upon the trial, plaintiffs rested their case on proof of the policy of insurance, and the evidence of C. F. Watkins, a surgeon employed at the Brainerd hospital, to the effect that the insured was brought to the hospital on the 13th day of August, 1902, suffering from a wound inflicted by a bullet from some firearm, the calibre of which he was unable to state. The wound was in the upper part of the thigh, and produced a double comminuted fracture of the femur or thigh bone. That insured died at the hospital on August 18, 1902, from the direct result of the gunshot wound just described. Defendant introduced in evidence the proofs of death and loss furnished the company. In these proofs was the affidavit of David W. Shields, guardian of the infant plaintiffs, setting forth that "Stevens was at the time of his death a passenger brakeman on the Northern Pacific Railway, that at the time of the injury he was performing his duties as passenger brakeman; that he had shortly before ejected a negro from the train, who, soon after being so put off the train, shot the brakeman, Stevens." Further on in the same affidavit was the following statement: "In the performance of his duties, it became necessary for Brakeman Stevens to eject a colored passenger who refused to pay his fare. After being put off the train, he shot Stevens with a 45 Colt's army revolver. He fell at once, and was unable to move without assistance. He had to be carried to the baggage car. He died at the Brainerd hospital of the Northern Pacific Railway Company at Brainerd, Minnesota." Accompanying these proofs, and a part thereof, was the affidavit of Isaac D. Worden to the effect that he was present when Stevens was shot, and was a witness to the shooting; "that the decedent was injured in the upper part of the left thigh by a bullet from a 45 Colt's army revolver, shot by another person; that Stevens fell at once, and was unable to move or help himself; that the visible mark of the injury was a hole in the back part of the thigh large enough to put one's thumb into." Defendant had R. M. Poindexter sworn as a witness, who testified that he was a clerk in the United States mail service, and was on the train the night Stevens was shot. "I remember the occasion of the attempt to expel or eject certain persons from the train at or near Bismarck, North Dakota, on August 12, 1902. At that time I was alone in the mail car, and had charge of receiving and distributing letters in the car without any assistance. I heard some one passing along on top of the car over my head. Before that the train was pulled down inside the yards--pulled out a ways from Bismarck. I stepped to the door to see what was up, and saw somebody passing on the north side of the train, and also heard somebody coming up on the south side, and somebody on the roof. As I went to the door on the north side, and stood there a short time. I heard a pistol shot; and, as I heard it, I could not see who fired it. It was right in front of the engine. Then I started to go to the south side of the car to look out of that door; and just as I got to the door I heard another shot, and I looked out, and saw some person stop, wheel around, and kind of step forward, and saw a flash, and heard Stevens say...