Thompson v. Bankers Mutual Casualty Insurance Company
| Decision Date | 19 February 1915 |
| Docket Number | 19,038 - (253) |
| Citation | 151 N.W. 180,128 Minn. 474 |
| Parties | STELLA THOMPSON v. BANKERS MUTUAL CASUALTY INSURANCE COMPANY |
| Court | Minnesota Supreme Court |
Action in the district court for Mower county by a minor to recover $1,500 upon defendant's accident insurance policy in favor of plaintiff's father. The answer set up several defenses, one that decedent was violating the law governing the driving of automobiles, another that his injuries were caused by his intoxication, a third that he was an intemperate person during the life of the policy. The case was tried before Quinn, J., who denied defendant's motion for dismissal of the action, and a jury which returned a verdict for $1,649. From an order denying its motion for judgment notwithstanding the verdict or for a new trial defendant appealed. Affirmed.
Accident insurance -- intoxication -- burden of proof.
1. This action is brought on an accident insurance policy to recover for death due to accidental injury. By the terms of the policy there can be no recovery if deceased was intoxicated at the time of injury. The burden was on the defendant to prove intoxication. The evidence is conflicting and it is not conclusive that deceased was intoxicated.
Evidence -- opinion of expert -- hearsay.
2. Expert testimony of a physician based in part upon statements made to him by others may properly be received if the evidence shows what the reported statements were and there is evidence in the case tending to prove their truth.
Evidence admissible.
3. Any evidence tending to cast doubt upon defendant's theory of intoxication was proper, though not sufficient in itself to disprove it.
Witness -- impeachment -- conviction of crime.
4. Conviction of any crime, whether felony or petty misdemeanor may be proved in order to impeach a witness. The nature of the crime may properly be shown.
Simon Michelet, Clyde R. White and Catherwood & Nicholsen, for appellant.
Sasse & French, for respondent.
On May 19, 1912, the body of Lee Thompson was found lying by the roadside under an overturned automobile which he had been driving. He held a policy of accident insurance issued by defendant in which plaintiff was named as beneficiary. Plaintiff brought suit on this policy and recovered a verdict. Defendant appeals.
1. The policy provided that defendant should not be liable for any accidental injuries received by deceased while intoxicated. Defendant claims that the evidence conclusively shows that deceased was intoxicated at the time of his death. The story of deceased's movements on the night of the accident, so far as they are known, are in general as follows: Deceased lived at Lansing, about six miles north of Austin. Late in the afternoon of May 18, he took his automobile and went to Austin on an errand, returning early in the evening. He then spent some time in the barn of one Fred Leek, at Lansing, and drank some liquor there. He then again went to Austin with a party of men, returning to Lansing about midnight, but passing straight through the town to the north. Nothing more was seen of him until three o'clock in the morning, when three farmers living four miles northeast of Lansing found deceased with his automobile stalled in the mud by the roadside, and they helped him out. The party then consisted of deceased, Leek, and one Herbert Hunt. They were then within one and one-half miles of Hunt's home but did not go there. Instead, they started to return to Austin. As they passed through Lansing, Leek left the car and went home. Hunt alone remained with deceased. As they came near Austin the road turns to the right. At this turn the car went over an embankment on the left side of the road, and deceased and Hunt were pinned beneath the car. Hunt was rescued alive, but deceased was dead when help came. The circumstances point strongly to a night of debauch. Deceased had been out most of the night. He was given to drinking to excess. So was Hunt. Hunt was admittedly intoxicated on this night. They had both beer and whisky in the automobile. On the other hand, there is the direct testimony of a large number of witnesses who saw deceased at several times during the night. The decided weight of this direct testimony is to the effect that deceased was in fact sober. The three farmers, who were the last witnesses to see him, gave unqualified testimony to this effect. Two juries have passed upon the case and each found that deceased was sober. The last verdict has the approval of the trial court. The burden of proving that the policy was avoided by the intoxication of deceased was upon the defendant. Lockway v. Modern Woodmen of America, 121 Minn. 170, 141 N.W. 1. It is clear that the verdict is not clearly or palpably against the evidence, and we shall not disturb it.
2. Dr Pierson, the coroner, was called as a witness for the plaintiff. He arrived at the scene of the accident soon after the automobile was removed from deceased. When ...
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