Turner v. Mut. Ben. Health & Accident Ass'n

• Citation: 24 N.W.2d 534,316 Mich. 6
• Decision Date: 07 October 1946
• Docket Number: No. 7.,7.
• Parties: TURNER et al. v. MUTUAL BEN. HEALTH & ACCIDENT ASS'N.
• Court: Michigan Supreme Court

316 Mich. 6

24 N.W.2d 534

TURNER et al.

v.MUTUAL BEN. HEALTH & ACCIDENT ASS'N.

No. 7.

Supreme Court of Michigan.

Oct. 7, 1946.

Appeal from Circuit Court, Kalamazoo County; George V. Weimer, judge.

Action on health and accident policy by Raymond Turner and another against Mutual Benefit Health and Accident Association, a Nebraska corporation. From a judgment for the plaintiffs, the defendant appeals.

Affirmed.

Before the Entire Bench.

Clifford M. Toohy, of Detroit, and Frost & Ford, of Kalamazoo, for defendant and appellant.

Mason, Stratton, Kent & Wise, by Lynn B. Mason, all of Kalamazoo, for plaintiffs and appellees.

CARR, Justice.

This is an action on a health and accident insurance policy issued by defendant to Robert W. Turner under date of April 3, 1944. At that time the assured was 19 years of age and was residing with his parents who were the beneficiaries under the policy and are the plaintiffs herein. The policy provided for the payment of $1250 for loss of life ‘resulting directly and independently of all other causes, from bodily injuries sustained during any term of this policy, through purely accidental means (Suicide, sane or insane is not covered.)’ The application for the policy was taken by defendant's soliciting agent, Mrs. Ora Adams, who came to the home for the purpose of obtaining an application for a policy from plaintiff Raymond E. Turner. The record indicates that Mrs. Adams asked Robert certain questions contained in the application, and based the answers to other questions on her knowledge or observation. At the time, Robert was employed by the Sutherland Paper Company of Kalamazoo, Michigan, and Mrs. Adams was so informed. The application was signed by Robert, was forwarded to defendant company by its agent, and a copy was attached to the policy in question at the time it was delivered to the assured.

Robert continued to work for the paper company until October 14, 1944, at which time he suffered injuries resulting in his death. Thereafter defendant undertook to rescind the policy, claiming that information contained in the application as to the assured's physical condition was not correct. A check for the premiums paid was sent to the beneficiaries, acceptance thereof being refused. Such tender was renewed at the time of the trial.

At the conclusion of the proofs counsel for defendant moved for a directed verdict, claiming that plaintiffs had failed to sustain the burden of proof on the question whether death resulted from purely accidental means; and that the assured was, as a matter of law, bound to know the contents of the application, and that plaintiffs were precluded from recovering because certain answers therein were not true. Decision on the motion was reserved under the provisions of Act No. 217, Pub.Acts 1915, as amended by Act No. 44 Pub.Acts 1939, Comp.Laws 1929, and 1940 Supp., § 14531 et seq., Stat.Ann.1945 Supp. § 27.1461 et seq., commonly referred to as the Empson Act. The jury returned a verdict in favor of plaintiffs for the amount of the policy, together with interest. Thereafter defendant moved for judgment notwithstanding the verdict, relying on the reasons advanced in support of the motion for directed verdict, and also on certain additional grounds which will be referred to later. This motion was denied and defendant has appealed, asking that the judgment entered on the verdict be vacated and judgment for defendant ordered to be entered. The question presented is whether defendant was entitled to judgment as a matter of law for the reasons, or any of them, advanced by it.

The burden of proving that the death of the assured resulted from purely accidental means rested on plaintiffs. The testimony indicates that on the morning of October 14, 1944, Robert was at his place of employment, changed his clothes in the dressing room provided for that purpose, and then jumped from the floor where he was at the time, to a moving freight elevator that was descending and had passed the floor by approximately two and one-half feet. A witness described this elevator as being approximately six by eight feet, with wood panels along the sides and with open ends. The operator of the elevator testified that he saw Robert jump down on the elevator, that his attention was then called to something else, and that he was not aware anything had happened to Robert until another employee called to him, whereupon he stopped the elevator. He testified further that Robert made no outcry of any kind. Another employee of the paper company was on the main floor, saw Robert falling, and saw him strike the concrete floor. In describing the incident this witness said:

‘Will, as near as I know it, I saw him coming down through the air. I heard the noise first and looking up I saw his body come tumbling out of the shaft, over the tie bar, and he landed right at my feet; I should judge probably about two or three feet away from me, and one leg extended inside the elevator shaft; and I hollered to the operator to stop the elevator immediately, not knowing how bad he was hurt, so that it wouldn't cut off his leg. It was hanging on the inside; so I dragged him out of the shaft, as soon as I had hold of him, and took him immediately to the first aid room.’

A physician who attended Robert testified, in substance, that the assured has sustained a severe head injury, which, in the opinion of the witness, caused the death. He further testified that Robert did not regain consciousness after he first attended him. The testimony of the witness before referred to who saw Robert strike the main floor indicated that he was unconscious immediately following the impact.

It further appears from the evidence that the elevator was loaded with ice cream pails, with a space between a foot and two feet on the ends and approximately one foot on the sides. The controls were on the southwest corner of the elevator, and the load interfered with the operator observing what happened to Robert. The testimony does not show the rate of speed of the elevator, but it was described by a witness as ‘slow moving.’

The evidence rather clearly indicates that the death of the assured resulted from the head injury referred to by plaintiffs' medical witness. There is no testimony suggesting a different theory. Neither it there any basis for an inference that the fall was due to heart failure or apoplexy, or other natural cause. As a general rule death resulting from external and violent means gives rise to an inference or presumption that it was accidental. 46 C.J.S., Insurance, § 1319, p. 428. New York Life Ins. Co. v. Gamer, 303 U.S. 161 58 S.Ct. 500, 82 L.Ed. 726, 114 A.L.R. 1218.

In support of its contention that plaintiffs did not sustain the burden of proof resting on them defendant cites and relies on Dimmer v. Mutual Life Ins. Co., 287 Mich. 168, 283 N.W. 16, and Koycheff v. Mutual Benefit Health & Accident Ass'n, 305 Mich. 660, 9 N.W.2d 883. In both of these cases there was evidence tending to show that death was caused by suicide rather than by accidental means. In the case at bar, however, there is nothing to suggest that Robert Turner had any thought of taking his own life, or that he had any motive for doing so. Apparently, save for the physical defect hereinafter noted, he was a normal young man. Neither is there anything in the proofs, relating to the manner in which the injury was sustained, to justify an inference of an intent to commit suicide.

It is further claimed by defendant that because Robert voluntarily jumped down upon the elevator his subsequent injury and death cannot be said to have resulted from accidental means. Attention is called to the case of Whitehead v. Railway Mail Ass'n, 5 Cir., 269 F. 25. There, however, the insured got off a moving railroad train while it was crossing a bridge over a creek. Recovery was denied on the ground that death resulting from such an act was not accidental, within the meaning of the insurance contract there involved. Sizemore v. National Casualty Co., 108 W.Va. 550, 151 S.E. 841, is also cited. There the insured, who was a deputy sheriff, jumped from an automobile going between 25 and 30 miles an hour, in an attempt to prevent a prisoner from escaping. Under the terms of the policy, liability based on a traffic accident of such character, depended on the insured being ‘accidentally thrown’ from a vehicle. It was held that there could be no recovery under the terms of the policy involved.

In view of the claim advanced by defendant the decision in United States Mutual Accident Ass'n v. Barry, 131 U.S. 100, 9 S.Ct. 755, 757, 33 L.Ed. 60, is squarely in point. There the certificate issued to the assured obligated the insurer to pay to the beneficiary the sum of $5,000 if death of the assured resulted from ‘bodily injuries effected through external, violent, and accidental means.’ The testimony established that the assured voluntarily jumped from a platform, approximately four feet in height, to the ground. A witness who was in the company of the assured described it as a ‘heavy jump,’ as though the assured struck the ground on his heels Internal injuries resulted, causing the death of the assured several days later. In sustaining a verdict of the jury in favor of the beneficiary, it was said:

‘It is further urged that there was no evidence to support the verdict, because no accident was shown. We do not concur in this view. The two companions of the deceased jumped from the same platform, at the same time and place, and alighted safely. It must be presumed, not only that the deceased intended to alight safely but thought that he would. The jury were, on all the evidence, at liberty to say that it was an accident that he did not. The court properly instructed them that the jumping off the platform was the means by which the injury, if any was sustained, was caused; that the question was whether there was anything accidental, unforeseen, involuntary,...