Woodmen of the World Life Ins. Soc. v. Braden

• Decision Date: 19 March 1942
• Docket Number: 3 Div. 346.
• Citation: 242 Ala. 606,7 So.2d 311
• Parties: WOODMEN OF THE WORLD LIFE INS. SOC. v. BRADEN.
• Court: Alabama Supreme Court

7 So.2d 311

242 Ala. 606

WOODMEN OF THE WORLD LIFE INS. SOC. v. BRADEN.

3 Div. 346.

Supreme Court of Alabama

March 19, 1942

Rehearing Denied April 16, 1942.

Calvin Poole, of Greenville, for appellant.

D.M Powell and Powell & Hamilton, all of Greenville, and Leonard L. Sells, of Washington, D.C., for appellee.

BOULDIN, Justice.

Action for recovery of the double indemnity benefit alleged to be due under a certificate of insurance issued by a Fraternal Benefit Society providing for such benefit in case of death of the member resulting solely from bodily injury through external, violent, and accidental means.

The policy stipulated that no such benefit should be payable in the event of death of the member by his own hand or act whether sane or insane.

The insured came to his death from a gunshot wound inflicted from the front and ranging through the region of the heart. The shot came from the member's own gun, being handled by him at the time. Whether the wound was intentionally self-inflicted or was the result of an accident while cleaning the gun was the controlling issue of fact in the case.

The policy and application for double indemnity benefits contained the specifications required by Title 28, § 179 Code of 1940. Among others, that the constitution and by-laws of the society, including subsequent amendments thereto constitute a part of the contract.

Under a plea in short by consent, defendant offered in evidence Subsection 10, Section 57 of the constitution and by-laws of the society which reads:

"Tenth. The Society shall not be liable for the payment of double indemnity under any beneficiary certificate providing for double indemnity in case of the death of the member by accident, where it is claimed that death resulted from accidental drowning, cutting, poisoning, hanging, inhalation of gas, discharge of firearms or shooting, unless at least one person other than the member was an eye witness of such drowning, cutting, poisoning, hanging, inhalation of gas, discharge of firearms, or shooting."

The ruling of the court sustaining objections to and rejecting this eye-witness clause is presented for review.

The ground upon which the validity of the eye-witness clause is challenged is that it is against public policy in that it usurps or invades the judicial function to try issues of fact upon established rules of evidence; denies the right to ascertain the facts in this class of cases upon circumstantial evidence.

In 20 Am.Jur. 45, 46, § 15, is a general discussion of contract stipulations affecting rules of evidence.

In 29 Am.Jur. 1141, § 1519, a conflict of decisions is noted in respect to eye-witness clauses in accident insurance cases. The section concludes:

"According, however, to the weight of authority, provisions that there shall be no liability on the part of the insurer on account of death or injury produced by accident or the discharge of firearms, unless the claimant shall establish the accidental character of the injury by an eyewitness other than the insured or claimant, are not against public policy as an attempt to modify or control the procedure of courts of justice."

We quote from annotation 62 A.L.R. 39: "While the cases are not wholly in accord, the weight of authority holds that provisions that there shall be no liability on the part of the insurer on account of death or injury produced by the discharge of firearms, unless the claimant shall establish the accidental character of the injury by an eyewitness other than the insured or claimant, are not against public policy as an attempt to modify or control the procedure of courts of justice. Becker v. Interstate Business Men's Acc. Ass'n, 8 Cir., 1920, 265 F. 508; Moses v. Illinois Commercial Men's Ass'n, 1914, 189 Ill.App. 440; Roeh v. Business Men's Protective Ass'n, 1914, 164 Iowa 199, 145 N.W. 479, 51 L.R.A., N.S., 221, Ann.Cas.1915C, 813; Schumacher v. National Travelers' Ben. Ass'n, 1925, 118 Kan. 523, 235 P. 844; Southern Travelers' Ass'n v. Shattuck, Tex.Civ.App., 1928, 2 S.W.2d 568; Lundberg v. Interstate Business Men's Acc. Ass'n, 1916, 162 Wis. 474, 156 N.W. 482, Ann.Cas.1916D, 667. Contra: Rollins v. Business Men's Acc. Ass'n, 1920, 204 Mo.App. 679, 220 S.W. 1022, and Utter v. Travelers' Ins. Co., 1887, 65 Mich. 545, 32 N.W. 812, 8 Am.St.Rep. 913."

The cited cases are there reviewed.

Werner v. Travelers' Protective Ass'n, 37 F.2d 96, 97, U.S. Court of Appeals, Fifth Circuit, opinion by Judge Walker, dealt with a clause touching deaths from gunshot wounds of like tenor as that here involved. We quote:

"The above set out provision of the contract quite plainly shows that the appellee did not consent to be liable when the death of a member results from a gunshot wound or the discharge of firearms when there is no eyewitness except the member himself. That provision negatives the conclusion that death of a member is a risk insured against when it results from the discharge of a firearm while he is alone and no one other than himself sees all or any part of what occurs or happens to him. That the death of the deceased did not render the appellant liable under the contract sued on was shown by the evidence to the effect that his death was a result of the discharge of a firearm and that that happening was...