Svenson v. Mutual Life Ins. Co. of New York, 10742.

• Decision Date: 27 January 1937
• Docket Number: No. 10742.,10742.
• Citation: 87 F.2d 441
• Parties: SVENSON et al. v. MUTUAL LIFE INS. CO. OF NEW YORK.
• Court: U.S. Court of Appeals — Eighth Circuit

87 F.2d 441 (1937)

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

No. 10742.

Circuit Court of Appeals, Eighth Circuit.

January 27, 1937.

Gale B. Braithwaite, of Sioux Falls, S. D. (James O. Berdahl and U. S. G. Cherry, both of Sioux Falls, S. D., on the brief), for appellants.

M. T. Woods, of Sioux Falls, S. D. (J. H. Voorhees, T. M. Bailey, and Roswell Bottum, all of Sioux Falls, S. D., on the brief), for appellee.

Before SANBORN, WOODROUGH, and BOOTH, Circuit Judges.

SANBORN, Circuit Judge.

This is an appeal from a judgment entered upon a directed verdict for defendant in an action to recover double indemnity for accidental death under a $10,000 policy of life insurance payable to the estate of the insured.

Olander Benson was the insured. He died February 22, 1934. His executors claimed double indemnity on the ground that his death was accidental under the terms of the policy. The company paid the face of the policy, denying that the death was accidental. The executors brought this action under the double indemnity provision of the policy, which provided for an additional $10,000 upon receipt by the company at its home office of "due proof that such death resulted directly from bodily injury received after the date of issue of this policy, independently and exclusively of this policy, independently and exclusively of all other causes, and that such bodily injury was effected solely through external, violent and accidental causes, and that such death occurred within sixty days after the date of such bodily injury."

The company in its answer set up the following provision of the policy: "Provided, however, that this Double Indemnity shall not be payable in the event of the Insured's death as a result of military or naval service in time of war nor shall it be payable in the event of the Insured's death at any time by his own act, whether sane or insane, nor if such death be caused directly or indirectly, wholly or partly, by riot, insurrection or war or any act incident thereto, nor if such death be a result of participation in aeronautics or submarine operations, nor if such death result from any violation of law by the insured, or from police duty in any military, naval or police organization, or directly or indirectly from bodily or mental infirmity or disease of any sort." It then alleged that "Olander Benson came to his death, directly or indirectly, from bodily and mental infirmity and disease and by his own act."

The issue to be tried was: Did Olander Benson die as a result of bodily injuries effected solely and exclusively through external, violent, and accidental causes, independently of all other causes, and not by his own act and not as a result of disease?

The burden of proving that the death of the insured was due solely to external, violent, and accidental causes (unexpected causes or means which produced that result) was upon the plaintiffs. Lincoln Nat. Life Ins. Co. v. Erickson (C.C.A. 8) 42 F.(2d) 997, 1000; Columbian Nat. Life Ins. Co. v. Comfort (C.C.A.8) 84 F.(2d) 291, 292.

Upon the trial, the court below, at the close of plaintiffs' case, being of the opinion that they had not sustained the burden of proof, directed a verdict for defendant. Whether the court erred in this regard is the main question before us.

In deciding whether there was error in directing a verdict for the defendant, several matters must be kept in mind: (1) All facts that the plaintiffs' evidence reasonably tends to prove must be assumed to have been established, and all inferences fairly deducible from such facts must be drawn in their favor. Lumbra v. United States, 290 U.S. 551, 553, 54 S.Ct. 272, 273, 78 L.Ed. 492; Illinois Power & Light Corporation v. Hurley (C. C.A.8) 49 F.(2d) 681, 682, 686; Columbian Nat. Life Ins. Co. v. Comfort (C. C.A.8) 84 F.(2d) 291, 292. (2) Accidental death need not be established by direct evidence, but may be deduced from other facts proven, which means that, like any other fact, it may be established by circumstantial evidence. United States Fidelity & Guaranty Co. v. Blum (C.C.A. 9) 270 F. 946, 952; Mutual Life Ins. Co. v. Hatten (C.C.A.8) 17 F.(2d) 889, 890; Wells Fargo Bank & Union Trust Co. v. Mutual Life Ins. Co. (C.C.A.9) 66 F. (2d) 890, 894; Gunning v. Cooley, 281 U.S. 90, 94, 50 S.Ct. 231, 233, 74 L.Ed. 720; Columbian Nat. Life Ins. Co. v. Comfort, supra. (3) Evidence equally consistent with the hypothesis that the death was accidental and with the hypothesis that it was not accidental tends to establish neither. Ewing v. Goode (C. C.S.D.Ohio) 78 F. 442, 444; Gunning v. Cooley, supra; Stevens v. The White City, 285 U.S. 195, 204, 52 S.Ct. 347, 350, 76 L.Ed. 699; Eggen v. United States (C. C.A.8) 58 F.(2d) 616, 620; Deadrich v. United States (C.C.A.9) 74 F.(2d) 619, 622; Claywell v. Inter-Southern Life Ins. Co. (C.C.A.8) 70 F.(2d) 569, 571. (4) Issues that depend upon the credibility of witnesses and the weight of evidence are to be decided by the jury. (5) The question whether an insured has died as the result of accidental causes is one of fact for the jury if that question is uncertain either because of a conflict in the evidence or because fair-minded men will honestly draw different conclusions from the undisputed facts. Travelers' Ins. Co. v. Melick (C.C.A.8) 65 F. 178, 181, 27 L.R.A. 629; Gunning v. Cooley, supra; Best v. District of Columbia, 291 U.S. 411, 415, 54 S.Ct. 487, 489, 78 L. Ed. 882; Southern Pac. Co. v. Ralston (C.C.A.10) 67 F.(2d) 958; Mutual Life Ins. Co. v. Hatten (C.C.A.8) 17 F.(2d) 889, 893, supra; Crookston Lumber Co. v. Boutin (C.C.A.8) 149 F. 680, 685; United States Can Co. v. Ryan (C.C.A.8) 39 F.(2d) 445, 446; Illinois Power & Light Corporation v. Hurley (C.C.A.8) 49 F. (2d) 681, 686. (6) It is only where the evidence upon any issue is all on one side, or so overwhelmingly on one side as to leave no room to doubt what the fact is, that the court should direct a verdict. People's Savings Bank v. Bates, 120 U.S. 556, 562, 7 S.Ct. 679, 30 L.Ed. 754; Southern Pac. Co. v. Pool, 160 U. S. 438, 440, 16 S.Ct. 338, 40 L.Ed. 485; Gunning v. Cooley, supra.

The facts disclosed by the evidence are as follows:

Olander Benson, on February 22, 1934, was a farmer 59 years of age, about 6 feet tall, and weighing 220 pounds. He owned and operated a 1,200-acre farm about three miles from Sioux Falls, S. D., upon which he lived. He had about 210 cows and 250 hogs on the place. He did not do the heavy manual work upon the farm, but managed it and had three employees. It was his custom each day to drive two of his daughters, who were school teachers, in to Sioux Falls to their work and to call for them each afternoon when school was over. His health was apparently good, although he was occasionally observed to be out of breath after exerting himself in walking or cranking his car, and during the last year of his life he had been troubled with gas on his stomach. He had been recently examined for the reinstatement of the policy in suit and another policy issued by the same company, and the policies had been reinstated and were in force when he died. He had had no medical attention since the fall of 1932, when he complained of gas on his stomach and constipation. He was well the next day. No one observed any change in his physical condition while he was alive.

In the afternoon of February 22, 1934, he drove to Sioux Falls for his daughters and brought them home, arriving at about 5 o'clock. He planned to drive his daughter Florence in to Sioux Falls for a 6:30 p. m. engagement, and then to drive back to the farm to take his wife and daughter to church in Sioux Falls. He usually made the rounds of the barns and other buildings on the farm every day after bringing his daughters from school. He was apparently last seen alive about 5:30 p. m. by Mr. and Mrs. Van Aalsburg, who had moved into a building connected with the pump house in the middle of the yard on the Benson farm. Benson had hired Van Aalsburg to work for him commencing March 1, 1934. He told the Van Aalsburgs, when they saw him in front of their quarters, that if they needed anything, to let him know and he would get it the next morning, and that as soon as they were settled he would arrange to have Van Aalsburg start work. He left Van Aalsburgs' door, walked east, and stepped through the fence into the yard where the cattle were. Mr. Benson did not appear at the house in time to take Florence to town, and his daughter Effie took the car and drove her in shortly after 6 o'clock. Effie stopped at a garage for a few minutes and then drove home, arriving probably some time after 6:30 and before 7. Mr. Benson had not come to the house, and Effie told Gunnar Olson, one of the employees, to look for him. The sun was down, but it was not dark outside. Olson went to the hog house, a long low shed, facing west and adjoining the cattle yard. This house contained young hogs, the heaviest of which would weigh 150 pounds. There was a door at the end of the house, which was fastened, and an opening on one side leading into the yard, across which a bar was usually nailed to keep the cattle out. Whether the bar was up that night is not known, but it was down the next morning. Olson entered the hog house by the end door, which he found fastened. It was dark inside, and at first he saw nothing but hogs. After he had chased them out, he saw Mr. Benson's body about 25 feet inside upon the ground, lying face up close to the north wall with the head closest to the wall and the legs pointing southeast. About a dozen hogs had been around the body, at the time Olson came in, eating it. Mr. Benson had been dressed in overalls, jacket, and underwear. The jacket and underwear were torn on the right side. The flesh had been eaten from his face and neck and partially from his hands. There was a hole in his chest on the right side, such as could have been made by a cow's horn, and there were many parallel scratches...