Wills v. Midland Nat. Life Ins. Co.

• Decision Date: 15 June 1939
• Docket Number: 7846.
• Parties: WILLS v. MIDLAND NAT. LIFE INS. CO.
• Court: Montana Supreme Court

91 P.2d 695

108 Mont. 536

WILLS v. MIDLAND NAT. LIFE INS. CO.

No. 7846.

Supreme Court of Montana

June 15, 1939

Appeal from Second Judicial District Court, Silver Bow County; T. E Downey, Judge.

Action by Mary Wills against the Midland National Life Insurance Company on a group insurance policy covering the life of plaintiff's brother. From a judgment entered in accordance with a verdict awarding plaintiff the full amount of the double indemnity provided by the policy, defendant appeals.

Affirmed.

N. A Rotering, of Helena, and A. L. Sherin and C. D. Jorgenson both of Butte, for appellant.

McCaffery & McCaffery, of Butte, for respondent.

ANGSTMAN Justice.

The plaintiff is the beneficiary in a group insurance policy covering the life of her brother, Hugh Malloy, for $1,000. The policy provided for double indemnity "upon due proof of the death of insured *** in consequence of bodily injury effected solely through external, violent and accidental means," within ninety days after injury, as a direct result thereof and independent of all other causes.

The complaint alleges, in substance, that the insured on the 18th day of January, 1937, at about eight o'clock p. m., had gone from his place of residence to the main section of the city of Butte to attend the Rialto theater; that he customarily used an automobile in traveling from his residence to the business section of Butte, but on this occasion the automobile was out of service and being repaired, making it necessary for him to use the street car; that between eight and nine o'clock in the evening a blizzard began and continued throughout the night, with the temperature getting as low as 40 degrees below zero; that his frozen body was discovered on Ottawa street about three o'clock in the morning of January 19th about five blocks from his home; the body bore no evidence of injury other than freezing; it was lying face downward with the arms out stretched forward above the head; that the insured had gotten off the street car some blocks south of the proper place due to the frost or snow on the windows of the street car, making it difficult to determine the proper place to get off, and that as a result of the extreme cold and blizzard he succumbed thereto.

The answer contains an affirmative defense which alleges, in substance, that death was due to bodily or mental infirmity or disease, and voluntary exposure to unnecessary risk and not to accident. This defense was denied by reply.

The verdict of the jury gave the plaintiff the full amount of the double indemnity provided by the policy, and judgment was entered in accordance with the verdict. Defendant's motion for new trial was denied, and it appealed from the judgment. The only question presented by the appeal is whether there was sufficient evidence that death was caused by accidental means to justify submission of the cause to the jury and to sustain the court's order in denying a new trial.

The evidence is to the effect that the insured left his sister's home, where he resided, between seven and eight o'clock in the evening of January 18, with the expressed intention of attending the moving picture show at the Rialto at Park and Main Street, which was approximately a mile and a half from the sister's home. He was seen on the street near the Rialto about 7:40 by his brother-in-law, a street car conductor, and they exchanged greetings. He was next seen about 11:30 by the witness John Foichat near the corner of Main and Mercury Streets. He was next seen by the witness Phil Hannafin at about ten minutes to 12 in Phil's Place. Both Foichat and Hannafin testified that the insured was sober at the times they saw him. There is no evidence that he was an excessive drinker, or, in fact, that he drank intoxicating liquor at all.

It is established by the uncontradicted testimony of a number of witnesses that it came on very cold about eight o'clock on the evening of the 18th, with a heavy snow and strong wind from the northwest, a rapidly lowering temperature, and that about midnight it was 40 degrees below zero--a drop in the temperature of some 25 or 30 degrees between the time the insured left his home and midnight. The temperature at the time he left his home is not certainly fixed, but the record tends to establish the fact that it was somewhere between zero and 10 or 12 below, but not cold as compared with what it was a few hours later.

Prior to leaving his home that evening the insured asked his niece to go to the Lenz Drug Store and procure a quarter's worth of street car tokens; she did so and gave them to him; she gave him four tokens. He then left to go up town on the seven o'clock car. The street car travels on Florence Avenue. At its intersections with George Street and Ottawa Street there are two similar curves, one at each of the intersections. Ottawa is a short block from the house where insured lived. Two street car tokens were found on the body of insured at the time it was discovered. It is supposed that the others were used, one going each way up town and back. The body was found in about eighteen inches to two feet of snow, face downward and with the arms outstretched forward above the head; the head was toward the north.

The traffic on the street car was heavy on the night in question, and the windows were covered with frost and ice so that observation from the inside was obscured. It is the contention of plaintiff that the insured got off the street car on his return trip at the wrong place in a thinly settled locality in the city, making it necessary to walk farther than if he had disembarked at the proper place, and in consequence that he was overcome by the intense cold and deep snow and died from exposure and freezing. This is the theory upon which the cause was submitted to the jury by the court's instructions.

The evidence was sufficient to warrant submission of the cause to the jury, and to justify the court in denying the motion for a new trial.

It is elementary that in such a case as this, like any other case, the solution of any issue may rest upon circumstantial evidence. We so stated in Dalbey v. Equitable Life Assur. Soc., 105 Mont. 587, 74 P.2d 432.

A case with some features similar to this was that of Tuttle v. Pacific Mut. Life Ins. Co., 58 Mont. 121, 190 P. 993, 998, 16 A.L.R. 601. There recovery was denied, but in that case the insured's body was not discovered until some three years after he disappeared in the mountains on the trail of an elk. When he left camp the temperature was slightly below the freezing point, but was not cold enough to freeze a person out in the storm. The next day was pleasant but on the second day a heavy storm broke and continued for eight or ten days. His body was found about two miles from camp. His watch was in his vest pocket but the rifle he carried was nowhere in the vicinity. The skull was some thirty feet from the rest of the bones. At the time the body was discovered it was impossible to ascertain whether there had been any marks on it. This case, with the temperature 40 degrees below zero, presents an entirely different situation from that present in the Tuttle case. In that case this court recognized the rule that death engendered by exposure to cold cannot be said to be accidental "unless brought about by circumstances which may give it the character of accident;" or, as we stated in the Dalbey case [105 Mont. 587, 74 P.2d 434], "It [the Tuttle case] subscribed to the rule that, 'where, in the act which precedes an injury, something unforeseen or unusual occurs which produced the injury, the injury results through accident."'

In the Dalbey case we reiterated these controlling principles "(1) That...