Withers v. Pacific Mut. Life Ins. Co. of Cal.
| Decision Date | 15 November 1920 |
| Docket Number | 4204. |
| Citation | 193 P. 566,58 Mont. 485 |
| Parties | WITHERS v. PACIFIC MUT. LIFE INS. CO. OF CALIFORNIA. |
| Court | Montana Supreme Court |
Appeal from District Court, Silver Bow County; J. J. Lynch, Judge.
Action by Mary Withers against the Pacific Mutual Life Insurance Company of California. From a judgment for plaintiff and an order denying its motion for a new trial, defendant appeals. Affirmed.
Frank W. Haskins, of Butte, John F. Davies, of Spokane, Wash., and Miles J. Cavanaugh, of Butte, for appellant.
Manry & Wheeler, of Butte, and A. G. Shone, of Butte, for respondent.
This action was brought by the plaintiff as beneficiary in an accident insurance policy issued by the defendant company to John Withers, plaintiff's son, which policy provided indemnity for loss of life, limb, sight, or time by external violent, and accidental means, excluding suicide or attempts thereat, etc. The complaint alleges the execution and delivery of the policy and performance of conditions on the part of the insured, and then alleges that the insured "sustained bodily injury caused solely by external violent, and accidental means, excluding suicide, sane or insane, or any attempt thereat, sane or insane, to wit, he was shot in the neck by a bullet from a revolver, the said revolver being shot at the time by John Withers' wife, no further particulars being known to plaintiff; that the effect of such bodily injury was his death within 24 hours after he sustained such bodily injury." To this complaint a special demurrer was interposed upon the grounds, among others, that the complaint is uncertain, in that it fails to allege whether the injury sustained by Withers was caused solely by external, violent, and accidental means; that no facts are alleged showing that such injury was the effect of or caused by accidental means; that there are no allegations disclosing the nature or character of the proof to sustain the allegations; that the plaintiff does not allege whether the shooting of deceased was an accident, or intentional upon the part of the wife of deceased, or the probable result of deceased's own unlawful acts; that the complaint contains no sufficient statement of facts concerning the nature and circumstances of the death of Withers. In addition the defendant demurred generally, upon the ground that the complaint does not state a cause of action. These demurrers were overruled, and defendant answered, to which answer there was reply. It is not necessary, however, to discuss the answer or the reply as the issues raised thereby are not involved in this appeal.
The proof introduced was very brief. The testimony on the part of plaintiff was given by the plaintiff and a sister of deceased and an undertaker residing in Butte, none of whom were present in Nevada, the place where the insured met his death and none of whom purport to testify as to the cause of death except that when he was brought to Butte for burial he had a wound upon his neck over the jugular vein. In addition, the plaintiff offered the deposition of one Harrison Russell, an undertaker residing at Las Vegas, Nev., who testified that he had known deceased for something like four months prior to the time he was killed. This witness, after stating that deceased was killed on Thanksgiving Day, 1916, testified as follows:
This testimony was received over objection made at the trial. The defendant offered no testimony, and the foregoing is a concise statement of the case as made by the plaintiff. The defendant moved for a nonsuit upon the ground that the evidence failed to disclose that the death of the insured was caused solely by external, violent, and accidental means, excluding suicide, sane or insane, or any attempt thereat, sane or insane, which motion was by the court denied.
The court granted a motion for directed verdict made by plaintiff, after denying a motion for nonsuit. From the judgment and an order denying a motion for new trial defendant appealed.
No citation of authority is given in support of the demurrers to the complaint. In our opinion the complaint was sufficient. In fact, in its essential provisions it is very similar to the complaint in Insurance Co. v. McConkey, 127 U.S. 61, 8 S.Ct. 1360, 32 L.Ed. 308, hereinafter cited.
The testimony as to the incidents connected with the death of the insured is slight, but is sufficient to establish the death of insured by external and violent means. No effort was made to strike the answers as not responsive to questions asked, nor was any attempt made by propounding preliminary questions to test the sources of the knowledge of the witness; nor, so far as shown by the record, was any cross-examination had.
In cases upon accident policies containing provisions similar to those in the policy sued upon, the burden is, of course, upon the plaintiff to show that death was caused by external, violent, and accidental means and when the plaintiff has sustained this burden, the defendant must rebut the plaintiff's case, if it is to recover verdict.
It is asserted by defendant that the evidence is as susceptible of being construed as establishing murder of the insured by his wife, or at least an intentional killing of the insured by her act, as of establishing death by accident.
Upon the questions urged, we find many decisions. In the case of Travelers' Ins. Co., etc., v. McConkey, 127 U.S 61, 8 S.Ct. 1360, 32 L.Ed. 308, it was held that the claimant under the policy must establish by direct and positive proof that the death or injury of the insured was the result, not only of external and violent, but of accidental, means, and that the requirement of direct and positive proof does not make it necessary to establish the fact and...
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