Warner v. United States Mut. Acc. Ass'n

• Decision Date: 13 March 1893
• Court: Utah Supreme Court
• Parties: M. RUSH WARNER, RESPONDENT, v. UNITED STATES MUTUAL ACCIDENT ASSOCIATION, APPELLANT

32 P. 696

8 Utah 431

M. RUSH WARNER, RESPONDENT, v. UNITED STATES MUTUAL ACCIDENT ASSOCIATION, APPELLANT

Supreme Court of Utah

March 13, 1893

APPEAL from a judgment of the district court of the third district and from an order refusing to enter judgment in favor of the defendants.

The record in this cause came up without a motion being made for a new trial. Judgment was entered on the 28th day of April 1892, and a bill of exceptions was filed on the day of July 1892, and a notice of appeal on the 6th day of August, 1892. The record showed the complaint wherein the policy of insurance was pleaded in haec verba. The answer denied that the death was accidental, but averred that it was suicidal. As affirmative defense the answer alleged that the death was suicidal, and that even if the death was accidental it was the result of gross carelessness on the part of the deceased and that the death was caused by the contributory negligence of the deceased, and that such facts were pleaded "by way of estoppel and as reasons why the plaintiff should not recover." The general and special verdicts then followed in the record, next the motion of defendant for judgment on the special verdict. Then the judgment followed and then the bill of exceptions, which contained only the requests for instructions and the charge of the court as given; then followed the notice of appeal.

The requests of defendant for instructions were as follows:

(1) The plaintiff brings this suit on a policy, which has been introduced in evidence, to recover of the defendant the sum of five thousand dollars. The policy is issued in favor of J Harley Warner, and by the terms of the policy, the defendant agrees to pay five thousand dollars to said J. Harley Warner or his survivor, or in the event of his prior death, if death result from external, violent and accidental injuries alone in ninety days. Plaintiff in his complaint claims, that on or about March 5, 1891, and while the policy was in force, the assured J. Harley Warner, was accidentally shot and killed. This allegation of the complaint is denied by the defendant and the further defense is made, that the death of the assured was suicidal or the result of his own carelessness and negligence. The burden of proof is on the plaintiff, and before he can recover, he must establish by a fair preponderance of the evidence, that the death of J. Harley Warner was caused and produced by external, violent and accidental means. In this connection you are instructed that death by accidental means is death from an unexpected event which happens by chance, or which does not take place in the usual course of things.

(2) The burden of proof is on the plaintiff and before he can recover, he must satisfy you by a fair preponderance of the evidence, in addition to the matters set forth in the first instruction, that the death of J. Harley Warner was not suicidal or self inflicted, nor the result of his own carelessness, that immediate notice of such injury and death was given to the defendant, and with such notice a written statement giving full particulars of such injury, that the plaintiff is the duly appointed administrator of the estate of the said J. Harley Warner, and if he has filed to so establish by a fair preponderance of the evidence, each of the foregoing facts, then your verdict must be for the defendant.

(3) You are the sole judges of the credibility of the witnesses and the weight to be given to their testimony, and in judging of the weight to be given to the testimony, you are authorized, and it is your duty to take into consideration the manner in which the witnesses testify, the character of his or her testimony, by the evidence, if any, affecting his character for truth, honesty or integrity, or his or her motives, contradictory statements, if any, made by the witnesses, the means of knowledge concerning the facts of which the witness testifies, the candor or want of candor of the witness, the harmony of the testimony of the witness with human reason and experience, or facts known to exist, the opportunities of the witness to know the facts about which he testifies, the interest or want of interest which the witness has in the result of the suit, the deportment of the witness while on the stand, and from all these facts and circumstances, aided by the light of reason and experience, give to the testimony of each witness such weight as you think it justly entitled to and no more, and you may disregard entirely the evidence of any witness, whom you believe to have testified falsely as to any material matter.

The court refused to give each and every of these requests, but gave a charge, the following portions of which were objected to by the defendant:

(1) The plaintiff in this case sues as administrator of the estate of J. Harley Warner, deceased, to recover the amount alleged to be due plaintiff as such administrator, on a policy of insurance for $ 5,000, issued by the defendant to the said decedent in his life time. The complaint avers that the policy was in full force on the 5th day of March, 1891, all premiums and charges having been duly paid, and that on that day the said J. Harley Warner received a personal bodily injury through external, violent and accidental means, to-wit, a wound in the left breast by the discharge of a gun or pistol which then and there caused his death. That the plaintiff is the administrator of the estate of said decedent. That the said decedent during his life performed all the conditions of said policy of insurance on his part, and that the plaintiff has, as administrator, performed all the conditions of said policy to be performed on his part, and that he notified the defendant of the death of said decedent in writing immediately after such death, and that within six months prior to the commencement of this action he furnished the defendant affidavits and positive proof of said death and that the said policy nor any part thereof has not been paid by said defendant.

(6) If you find from the evidence that the said J. Harley Warner came to his death by means of a pistol or gun-shot wound, then his death was caused by external and violent means, within the meaning of the terms of the policy sued on, and it will only remain for you to determine from the evidence, whether or not the death of the decedent was accidental, and if you also find that it was accidental your verdict should be in favor of the plaintiff, but if you fail to so find, your verdict should be in favor of the defendant.

(7) If you find from the evidence that the decedent came to his death by means of a pistol or gun-shot wound and the evidence fails to disclose how, or by whom the fatal shot was fired, the law raises no presumption that it was fired by a murderer or assassin, nor that it was fired by the decedent with the intent to take his own life, but the presumption of the law would be that the fatal shot was accidentally fired and the plaintiff would be entitled to recover.

(8) If you find from the evidence, by a preponderance thereof, that the decedent, at or about the time alleged in the complaint, came to his death by means of a pistol or gun-shot wound, fired by some person other than the decedent himself, then his death was caused, not only by external and violent, but by accidental means, within the meaning of the policy sued on, and your verdict should be for the plaintiff.

(9) It is claimed by the defendant that the decedent came to his death by means of a pistol or gun-shot wound inflicted by himself with the intention of taking his own life, and as to this issue the burden of proof is upon the defendant, and if the defendant has satisfied you by a fair preponderance of the evidence that the decedent willfully took his own life, or if, from the evidence introduced by the defendant, together with that introduced by the plaintiff, you are satisfied the decedent willfully took his own life, then the plaintiff cannot recover and your verdict should be in favor of the defendant.

(12) You are the judges, gentlemen of the jury, of the credibility of the witnesses and the weight to be given to their testimony, and in judging the weight to be given to the testimony you are authorized, and it is your duty, to take into consideration the manner in which the witnesses testified, the character of his or her testimony, by the evidence, if any, affecting his character for truth, honesty and integrity, his or her method; contradictory statements if...