Stirk v. Mutual Life Ins. Co. of New York, 4470.

• Decision Date: 22 October 1952
• Docket Number: No. 4470.,4470.
• Citation: 199 F.2d 874
• Parties: STIRK et al. v. MUTUAL LIFE INS. CO. OF NEW YORK.
• Court: U.S. Court of Appeals — Tenth Circuit

199 F.2d 874 (1952)

STIRK et al. v. MUTUAL LIFE INS. CO. OF NEW YORK.

No. 4470.

United States Court of Appeals Tenth Circuit.

October 22, 1952.

Derrah B. Van Dyke and Lewis J. Wallace, Ogden, Utah, for appellant.

Dennis McCarthy, Salt Lake City, Utah (W. Q. Van Cott, Clifford L. Ashton, Salt Lake City, Utah, and Haughton Bell, New York City, on the brief), for appellee.

Before PHILLIPS, Chief Judge, and BRATTON and MURRAH, Circuit Judges.

MURRAH, Circuit Judge.

This is an appeal by the beneficiary of five insurance policies from a judgment in favor of the defendant insurance company in an action on the double indemnity feature of each of said policies.

The face of each of the policies provided for double indemnity "upon receipt of due proof that such death resulted from bodily injury effected solely through external, violent, and accidental means, all upon the conditions set forth in Section 1, * * *". Section 1 entitled "Double Indemnity" on the second page of the policies further provided that double indemnity would be payable upon "receipt of due proof that the Insured died as a direct result of bodily injury effected solely through external, violent, and accidental means, independently and exclusively of all other causes, and of which, * * * there is evidence of a visible contusion or wound on the exterior of the body, * * *."

The insured was lost while hunting in the mountains on or about October 18, 1943 and was never found. There was evidence that the insured was 51 years of age on the date of his disappearance, with a husky, sturdy physique. He had frequently hunted deer in the Guildersleeve Canyon area in Utah where he disappeared. On this particular occasion he arrived at the hunting camp about three days late because a stiff neck had confined him to bed. He arrived at the hunting camp about 4:30 in the afternoon, had a heavy meal, and started hunting with his companions. In ascending into the hills his companions noted that he was having difficulty breathing, that he was pale and lagged behind. The last time his companions saw him he was higher up on the ridge of the canyon and climbing higher. It began to rain, then to sleet and snow. Thinking that he had gone back to camp when he did not answer their call, his companions trotted back to camp and found that he was not there. It was soon dark and cold and snowing heavily in the mountains. The country where he was last seen was extremely vast, wild and rugged with sink holes, boulders, cliffs and canyons. There was a heavy undergrowth consisting of patches of chaparral beds, alpine fir, and spruce into which a man could easily lose himself if he sought shelter, and if he were unable to emerge, he could die there without being found for years.

The trial court instructed the jury that in order for the beneficiary to recover under the double indemnity provisions of the policies it was not necessary for the body to be found but that it was incumbent upon the beneficiary to prove by a fair preponderance of the evidence that death of the insured occurred on or about October 18, 1943 as a direct result of bodily injuries effected solely through external, violent and accidental means, independently and exclusively of all other causes and of which there was evidence of a visible contusion or wound on the exterior of the body, and not directly or indirectly from disease or bodily or mental infirmity.

More specifically, the jury was instructed that if they believed from a fair preponderance of the evidence that insured's death resulted directly or indirectly from being shot by a stray bullet, by falling over a cliff, or into a sink hole, crevasse or cavern, or if by falling over some obstruction such as a log, tree or the like he so injured himself as to be unable to travel, as a result of which he froze to death or died of exposure in a blizzard or heavy storm, and that if his body had been found the death or accident would have been evidenced by a visible contusion or wound on the exterior of the body, their verdict should be for the plaintiff; and conversely, the jury was instructed that if they found that the insured's death was not the kind that would have left a visible contusion or wound on the body, if it had been found, or that death was caused or contributed to, directly or indirectly, by bodily disease or mental infirmity, they should find for the defendant.

The effect of these instructions was to tell the jury that the burden was upon the plaintiff to prove by a preponderance of the evidence not only that death was accidental but that such accidental death was evidenced by a visible contusion or wound on the exterior of the body and was not indirectly or directly the result of bodily disease or mental infirmity.

The beneficiary excepted to the court's instructions on the theory that the provisions in the policies with reference to evidence of visible wounds or contusions on the exterior of the body were conditions, limitations or exceptions to the coverage provided in the face of the policies, as to which the insurer, not the beneficiary had the burden of proof. Consistently with her position in the trial of the case, the beneficiary contends on appeal that to prove a prima facie case and to be entitled to recover, she must show only circumstances from which the jury could infer that death resulted from bodily injuries effected solely through external, violent and accidental means, and that having made this proof the burden is then upon the insurer to prove the absence of any wound or contusion on the exterior of the body.

The policies being Utah contracts are governed by the laws of that state, and appellant relies upon the Utah cases which impose upon the insurer the burden of proving conditions, exceptions or exclusions from the coverage of the policy, as where the policy provides that the double indemnity provisions "`shall not cover accident, * * * caused directly or indirectly, wholly or partly, by bodily or mental infirmity, hernia, ptomaines, bacterial infections * * * or by any other kind of disease.'" See Browning v. Equitable Life Assur. Soc. of United States, 94 Utah 570, 80 P.2d 348, 351. Or where the policy specifically provides "`that no Accidental Death Benefit shall be payable if the death of the insured resulted * * * directly or indirectly from bodily or mental infirmity or disease in any...