Svihovec v. Woodmen Acc. Co.
| Decision Date | 01 May 1939 |
| Docket Number | No. 6563.,6563. |
| Citation | 69 N.D. 259,285 N.W. 447 |
| Parties | SVIHOVEC et al. v. WOODMEN ACC. CO. |
| Court | North Dakota Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
1. In an action upon a policy of insurance, insuring against death by “violent, external and accidental means,” the presumption is that the injury which caused death was unintentionally and not illegally inflicted.
2. Where a verdict of accidental death is founded upon proof of death by gunshot wound, aided by the presumption against an intentional or illegal injury, the verdict will not be set aside unless the other facts and circumstances proved, cannot be reconciled with any reasonable theory of accidental or nonintentional injury.
3. Where, in an action upon a policy of insurance insuring against death by “violent, external and accidental means,” the insurer relies upon specific exceptions set forth in the policy, the burden is upon the insurer to establish that the injury received by the insured was within such exceptions.
4. The burden to establish that the injury received by the insured was within the exceptions of the policy of insurance, though it was defendant's burden, may be sustained by plaintiff's evidence.
5. Evidence is examined, and it is held: The facts and circumstances surrounding the injury and death of the insured cannot be reconciled with any reasonable hypothesis of accidental or unintentional injury; that it is shown as a matter of law that the death of the insured was due to the intentional act of another person and therefore within the exceptions of the policy sued upon.
Appeal from District Court, Hettinger County; H. L. Berry, Judge.
Action by John Svihovec and others, by H. L. Alkire, their general guardian, against the Woodmen Accident Company, to recover on a contract of insurance. From a judgment in favor of the plaintiffs, the defendant appeals.
Judgment reversed and case dismissed.
Dullam & Young, of Bismarck, for appellant.
Jacobsen & Murray, of Mott, for respondents.
Joan, Elaine, Eugene and Valeria Svihovec brought this action by their general guardian as beneficiaries of a contract of insurance, issued by the defendant to their father, Charles B. Svihovec, Jr., insuring the said Charles B. Svihovec, Jr., against loss of life by “violent, external and accidental means.” By specific exceptions the policy excluded from coverage, death by suicide or death due to the intentional acts of the insured or any other person. Under the pleadings but two facts were put at issue, the fact of the death of the insured, and the cause of his death. It is alleged in the complaint: “That on or about the 4th day of November, 1936, in the county of Hettinger and state of North Dakota, while said policy was in full force the said Charles B. Svihovec Jr. received a personal injury, through violent external and accidental means which injury did then and there cause the death and the loss of life of the said Charles B. Svihovec, Jr.” In its answer, defendant “alleges that it is informed and believes that if the said insured died on the 4th day of November, 1936, or at any other time or at all, his death was due to suicide and to a violation of the laws of the state of North Dakota prohibiting the taking of one's own life, and to an intentional act of the insured or of another.” Upon the trial defendant admitted the fact of the death of the insured, and whether his death was due to violent, external and accidental means or to causes excluded from coverage by the exceptions in the policy, became the sole question at issue.
At the close of plaintiff's case, both sides rested and the defendant moved the court for a directed verdict. The motion was denied and the jury returned a verdict in favor of the plaintiff for the full amount of the policy and interest. No motion for a new trial was made and the appeal is from the judgment. A disposition of this case requires a review of the circumstances surrounding the death of the insured as they are disclosed by the record.
Charles B. Svihovec, Jr., a widower, and one Fred Miller, a bachelor, during the summer of 1936 resided on and farmed a tract of land located about five miles southeast of Mott, North Dakota. They had had no crop that year and had made up their minds to migrate westward. About October 30th, 1936, they came to the place of business of one Arnold Rounds in Mott, and while there, Miller, after consulting with Svihovec, purchased a 32-caliber Iver Johnson revolver. After the purchase had been made he held the gun in his hand, and turning to Svihovec, said, “I wonder how he will like this.” On November 4th, 1936, Svihovec and Miller ate “dinner” with Emil Svihovec, Charles' father, at his farm home, about seventeen miles southwest of Mott. They told Emil Svihovec they were leaving the following day for the west. After eating and saying goodbye, they left, and going back to Mott, called at the filling station of one Reuben Mehrer with whom they visited until about one-thirty P. M. when they left for their home.
At about 2:10 P. M., J. H. Blank, sheriff of Hettinger County, received a telephone call from a Mrs. John Miller, telling of a fire at the place occupied by Svihovec and Miller. Matt Meisner, Mott Fire Marshal, had received a call from an unknown source, notifying him of the fire at about the same time. Meisner arrived at the fire first, followed immediately by Blank. When Meisner arrived, the house was almost completely destroyed. Only the frame remained standing. The presence of bodies in the house was immediately discovered and the efforts of the firemen were directed to cooling that corner of the house where the bodies were located so they could be removed. The bodies were those of Svihovec and Miller. They were taken from the house at about 2:30 P. M. The bodies had been in the southeast corner of the house. Miller's body was three or four feet south and west of the door and Svihovec's was three or four feet west of Miller's. The door was located...
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Dick v. New York Life Insurance Co
...death by gunshot wound shifts the burden to the insurer to establish that the death of the insured was due to his suicide. Svihovec v. Woodmen Accident Co., supra. Under North Dakota law, this presumption does not disappear once the insurer presents any evidence of suicide. Ibid. Rather, th......
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Beaver v. Fidelity Life Association, 7070.
...Dick v. New York Life Ins. Co., 359 U.S. 437, 79 S.Ct. 921, 3 L.Ed.2d 935 (following North Dakota law); and see: Svihovec v. Woodmen Acc. Co., 69 N.D. 259, 285 N.W. 447. A renouned scholar and commentator on the law of evidence has suggested that in situations like ours, where a presumption......
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Abrahamson v. Amos
...Paul's death was accidental. Dick v. New York Life Ins. Co., 359 U.S. 437, 79 S.Ct. 921, 3 L.Ed.2d 935 (1959); Svihovec v. Woodman Acc. Co., 69 N.D. 259, 285 N.W. 447 (1939). The fact that Paul was an emotionally stable and bright individual, that he had been negotiating the sale of propert......
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Fancher v. North Dakota Workmen's Compensation Bureau
...in his death, plus the uncontroverted fact that for 14 years they deported themselves as husband and wife. Svihovec v. Woodmen Accident Co., 69 N.D. 259, 285 N.W. 447; Dick v. New York Life Insurance Co., 359 U.S. 437, 79 S.Ct. 921, 3 L.Ed.2d 935, and North Dakota cases cited therein; Lands......