The Employers' Liability Assurance Corporation v. Anderson
| Citation | 47 P. 331,5 Kan.App. 18 |
| Decision Date | 29 December 1896 |
| Docket Number | 136 |
| Parties | THE EMPLOYERS' LIABILITY ASSURANCE CORPORATION v. CARRIE E. ANDERSON |
| Court | Court of Appeals of Kansas |
Opinion Filed December 29, 1896.
Error from Wyandotte District Court. Hon. Henry L. Alden, Judge. Affirmed.
This was an action on an accident policy issued by The Employers' Liability Assurance Corporation, Limited, the plaintiff in error, insuring Merrill D. Anderson for the benefit of his wife, the defendant in error. The jury returned a general verdict for the plaintiff below and answered a number of special questions. A new trial was refused the defendant, and judgment was entered on the verdict; and the defendant below brought this proceeding in the Supreme Court to reverse that judgment. The record was certified to the Court of Appeals among the cases originally certified under the act of 1895.
The policy sued upon contained stipulations that it should not cover injuries of which there was "no visible mark upon the body," nor insure against death occasioned through "voluntary exposure to unnecessary danger," nor by "intentional injuries inflicted by insured . . . or by any other person," but should cover only death caused by violent, external and accidental means. The petition alleged the death of the insured, and due notice and due proofs thereof; and stated that, so far as known to the plaintiff the manner of death was as follows:
"That in walking to or from the bridge between the towns of Argentine and Armourdale, in said county and state, in the night time, between August 6 and August 7, and after the hour of ten o'clock P. M. of August 6, and before five o'clock A. M. of August 7, he, the said Merrill D Anderson, stumbled or fell into a hole at the east or south end of said bridge, and by the fall thereof was rendered and made unconscious, through blows received on the head and body occasioned solely and only by such fall, and that his head and body became and were in such a condition in said hole that he, the said Merrill D. Anderson, suffocated to death while there unconscious from such fall; that the outward and visible marks upon his head and body, and the position of said body in said hole, disclosed said facts, which are all the facts which are known to plaintiff."
The answer, besides denying generally the allegations of the petition, averred that the death of the insured was occasioned by "intentional injuries" inflicted upon him "by some other person;" that there were "no visible marks upon the body except marks upon the neck showing strangulation," and that his death had resulted "from his voluntary exposure to unnecessary danger;" which averments the reply denied.
The evidence showed that, as proofs of death, the defendant in error had furnished the plaintiff in error with an affidavit of the coroner of Wyandotte County, stating that he had conducted an inquest over the body, and that, from the evidence adduced at the inquest and observation and examination of the body, it was his opinion that the insured "came to his death from violence inflicted upon his person by parties at present unknown, and that the immediate cause of death was a condition of the lungs known as emphysema, and that this condition was caused by suffocation, violently employed;" a copy of the verdict of the coroner's jury, finding that the insured "came to his death from injuries inflicted upon his person by persons unknown to the jury," and her own affidavit, which recited: "Merrill D. Anderson, who was murdered on or about the sixth day of August, 1889, at Argentine, Kansas, was at that time my husband," etc., but did not otherwise indicate the manner of death. Afterwards, within the time limited by the policy for furnishing proofs, other proofs, showing that the death was due to accident -- not to intentional injuries -- were sent the plaintiff in error, but the evidence did not show whether these were actually received within the limitation.
From testimony on the trial it appeared that the insured, the night he was killed, went to the depot to meet a lady, who was coming to his house, and that his wife sought to dissuade him because she considered the journey dangerous. Why she considered it dangerous was not disclosed, unless it was indicated by the fact that he carried a razor and replied to her pleadings: "If anybody attacks me, I have a razor to defend myself." Upon this evidence the plaintiff in error requested the court to submit to the jury, by interrogatory and instruction, the question whether the insured's death was occasioned by voluntary exposure to unnecessary danger. The court refused; but answers to other special questions submitted showed that the insured's death was accidental, and not the result of violence inflicted by any person.
An hypothetical question put to a physician, as to what would be the effect if one should fall into a hole or ditch from three to three and a half feet deep, was objected to; and it was urged here that the court erred in permitting the question to be answered because the evidence showed that the hole or ditch was only from two to three feet deep. The plaintiff in error requested instructions affirming the propositions that the original proofs of death were conclusive, and, as they showed that the insured came to his death by intentional injuries inflicted upon him, the plaintiff could not recover; and that, if the original proofs were not conclusive, they were prima facie evidence of non-liability and precluded recovery unless overcome by evidence of facts subsequently discovered; but the court refused the instructions. On cross-examination the plaintiff was asked whether, in her affidavit accompanying the original proofs of death, she had not stated that her husband was murdered. The court sustained an objection to this question; but the affidavit itself was in evidence. The court permitted the plaintiff to explain her affidavit by stating that she did not read it and that she did not think it was read to her. Some additional facts are noticed in the opinion.
Judgment affirmed.
Lathrop, Morrow, Fox & Moore, for plaintiff in error.
C. N. Sterry, for defendant in error. Geo. Morgan, of counsel.
The plaintiff in error contends that, as they disclose the fact that Anderson was murdered, the first proofs of loss show no liability under the policy; and that those proofs are conclusive, and the defendant in error is estopped from denying the truth of the statements therein contained, unless there is a showing made of mistake in making the proofs or of the discovery of new facts...
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