Allen v. Travelers Protective Ass'n of America

Evans, J.

The certificate in question provided for accident insurance only. It provided for the payment of $5,000 in case of' the death of the insured by accident. The deceased died from a gunshot wound on August 7, 1909. Such wound was inflicted upon him on May 24, 1909. He received the wound while engaged in an encounter with a burglar in his home at about 1 o’clock in the morning. The following from appellant’s brief is a sufficient preliminary statement of the circumstances attending the inflicting of the injury which resulted in the death of the insured:

That on the 7th day of August, 1909, John Thomas Carmody died by reason of injuries received at the hands of a burglar on the 24th day of May, 1909. That at the time of the injury Mr. Carmody was mayor of the city of Cedar Rapids. That on that date and about 1 to half past 1 in the morning a burglar entered the home on Fifth avenue and the sleeping room of Mr. and Mrs. Carmody. That the home of Mr. Carmody was a two-story dwelling, and he and Mrs. Carmody were sleeping in one of the upstairs rooms that had an opening into a hallway and a window leading onto a porch on Fifth avenue. The bed in which they were sleeping was a little to the side of the door entering from the hall and was so that you could pass around the foot of the bed and upon either side of it. That about 1 o’clock on the morning of the 24th cries were heard from the Carmody home appealing for help and indicating that trouble was going on in the house. Those living in close proximity rushed across and found Mr. Carmody lying upon a sofa in one of the downstair rooms. That there was blood on his nightrobe over his stomach. Mrs. Carmody and her mother were in the room with Mr. Carmody at the time. Police arrived within a few moments and soon thereafter Dr. Rumhl. A bullet wound was found on Mr. Carmody that went just through the outer layer of the muscle of the stomach and lodged a little above the navel. Within a short time he was taken to the hospital and remained there until his death on the 7th day of August following. Mr. Carmody stated to Mrs. Zaleska, ‘ The coward got me here; ’ and he put his right hand over the end of the rib. There was a broken jardiniere in the hall at the base of the stairway. Mrs. Carmody said she was in bed when the burglar came and as he came up to the bed she awoke and said ‘Jack,’ and the burglar said, ‘Not another word at your peril.’ That in the meantime Mr. Carmody got up and began scuffling with the burglar and Mrs. Carmody went out the window on top of the porch and screamed for help and in the meantime shooting took place. It is further shown by the undisputed testimony that quite a scuffle ensued in the bedroom while Mrs. Carmody was out on top of the porch calling for help. That Mr. Carmody grappled the burglar who was attempting to get to the stairway or Mr. Carmody wás pushing him out into the hall, for it is shown that while in the hall at the head of the stairs a shot occurred, and two other shots took place within a short time thereafter as the burglar was either on the stairway or descending. Marks of the bullet were found on the wall. It is unquestioned the shots fired were from a revolver in the hands of the burglar. Mr. Carmody did not have in his hands a weapon of any kind.

The defendant is a mutual association and its contract is incorporated in its constitution and by-laws and in certain printed “rules” which were indorsed upon the back of the certificate of membership. Section 2 of article 9 of the eonstitution provides as follows: ‘ ‘ See. 2. $5,000 shall be paid to'the beneficiary named in the certificate of any deceased member in good standing in ease of death by accident.” If full effect were given to this provision according to its terms, there could be no question as to plaintiff’s right of recovery.

As modifying the quoted provision, the defendant pleaded certain “rules” of the defendant association which were indorsed upon the back of the certificate of membership. These rules are as follows:

That this association shall not be liable, in case of injuries, fatal or otherwise, inflicted by a member in good standing on himself while sane or insane, or injuries of which there are no visible mark upon the body (the body itself not being deemed such a mark in case of death), or in case of injury, disability or death happening to the member while in any degree under the influence of intoxicating liquors or narcotics, or by reason of and in conséquenee of the use thereof, or death or disability when caused wholly or in part by any bodily or mental infirmity or disease, dueling, fighting, wrestling, war or riot, injury causing death or disability resulting from an altercation or quarrel, voluntary overexertion (unless in a humane effort to save human life), voluntary or unnecessary exposure to danger or to obvious risk of injury, or by intentional injuries earning death or disability inflicted by the member or any other person upon him; injury causing death or disability received either while avoiding or resisting arrest, while violating the law or violating the ordinary rules of safety of transportation companies, or in case of injury fatal or otherwise, caused by disease of epilepsy, paralysis, apoplexy, sunstroke, freezing, fits, lumbago, vertigo or sleepwalking, voluntary or involuntary conscious or unconscious inhalation of any gas or vapor, injury fatal or otherwise, resulting from any poison or infection or the result of an insect bite or sting, or from anything accidentally or otherwise taken, administered, absorbed or inhaled, disease, death or disability resulting from' medical or surgical treatment; operation made necessary by the particular injury for which claim is made and occurring within six calendar months from date of accident excepted.

The particular “rule” upon which defendant relied is indicated in the foregoing quotation by italics. The contention was that the injury which caused the death of the insured was intentionally inflicted upon him by the burglar and that the defendant was therefore not liable.

In instructing the jury, the trial court laid upon the defendant the burden of proving that the injury in question was intentionally inflicted by the burglar. It also instructed the’ jury that a presumption would obtain that the injury was not intentionally inflicted unless it was otherwise made to appear from all the evidence in the case. The principal assignments of error concentrate upon the proposition here involved.

I. Appellant’s first complaint is that the trial court erred in its instructions in putting upon the defendant the burden of proving that the injury in question was intentionally inflicted by the burglar.

1. Accident Insurance : accidental death evidence. It appears conclusively from the evidence on both sides that the injury was not inflicted by Carmody himself. The injury therefore was accidental as to Carmody, even though it were intentional on the part of the burglar. This is the uniform holding of the.authorities, Jones v. U. S. Mutual, 92 Iowa, 652; Hutchcraft v. Insurance Companiy, 87 Ky. 300 (8 S. W. 570, 32 Am. St. Rep. 484); Button v. Association, 92 Wis. 83 (65 N. W. 861, 53 Am. St. Rep. 900).

If we could ignore the exceptions enumerated in the “rules” as above quoted, there could be no doubt of the plaintiff’s right of recovery as for death resulting from accidental injury. Jones v. U. S. Mutual, supra. If the plaintiff must fail, it is not because she has failed to show that the death resulted from accident but because by the terms of the insurance contract such accident was'excepted from its operation. Under the “rules,” not all accidental injuries are insured against. The exceptions are enumerated. These exceptions relate mainly, not to the nature or form of particular injuries, but to the immediate circumstances attending the infliction of tlie injury. For instance, accidental injuries occurring while the insured is under the influence of intoxicating liquors or while wrestling are excepted from the operation of the policy. In such a case it would not be necessary for the defendant to deny the accidental character of the injuries. It would be a sufficient defense to show that they occurred under circumstances excepted by the policy. So in the case before us. Even though the injury was accidental as to the insured, yet, if it was intentionally inflicted by the burglar, it was excepted from the operation of the policy, and the trial court so instructed the jury. Was the burden properly laid upon the defendant to show that the injury in question was intentionally inflicted ?

2 same-presumption. We have heretofore held that, where death is shown to have resulted from an external and visible injury, a presumption will obtain that it was not intentionally inflicted either by the insured or by another person. Caldwell v. Association, 156 Iowa 327; Taylor v. Association, 110 Iowa, 621; Carnes v. Association, 106 Iowa, 281; Jones v. U. S. Mutual Association, 92 Iowa, 652.

3. Same : burdenof proof: instruction. It is perhaps inaccurate in a verbal sense to say that the burden of proving any fact rests upon the defendant unless such alleged fact is a part of his affirmative defense. If a presumption obtains in favor of plaintiff, he may support it with additional evidence it he . can or he may take the risk ot resting upon his prima facie ease. A prima facie case is not necessarily a strong case, and it may be lost before a jury. The presumption in plaintiff’s favor is one of fact and is not conclusive as a matter of law. He is entitled to the benefit of it in so far as it is not overcome by the other evidence in the case. It matters not whether such other evidence comes from one side or from the other. In this ease the plaintiff made a prima facie case and rested without introducing any evidence of the immediate circumstances of the infliction of the injury. The defendant properly entered fully into such circumstances with its evidence. Looking at the question, therefore, in a negative and defensive sense alone, it was not misleading to say that the burden was on the defendant to show that the injury was intentionally inflicted.

But the defendant in this case pleaded this provision of the “rules” as a separate and affirmative defense. If this provision was properly pleaded as an affirmative defense, necessarily the burden of proving it rested upon the pleader.

4 Same : affirmative defenses burden of proof. There is the further consideration that the proviso pleaded was in the nature of an exception to the general provisions of the constitution which purported on their face to cover all aceident insurance. It devolved upon the deCendant to plead and to prove that the accidental injury, from which the insured died, came within such exception. If it devolved upon the plaintiff in the first instance to traverse such exception and to prove the negative, it would likewise devolve upon her to do the same as to the entire enumeration contained in the “rules” above quoted. We think, therefore, that the proviso under consideration should be deemed as in the nature of an exception and that the general rule of pleading and proof in such cases should obtain. This was our holding in Payne v. Frat. Accident Ass’n, 119 Iowa, 342, and Jones v. U. S. Mutual Ins. Co., supra.

5. Same : instructions: harmless error. The fact that the accidental character of the injury as to Carmody is conclusively shown, from the evidence on both sides, renders it unnecessary that we consider the instructions of the court to the effect that such injury was presumptively accidental. Such instructions could not be prejudicial to defendant, upon this record, even if they were abstractly erroneous.

6. Evidence : order of introduction : cross-examination : discretion. II. Complaint is made by appellant because it was not permitted to cross-examine the witness, Mary Carmody, the beneficiary, to the extent desired. The attempted cross-examination is set forth fully in the record. We need not include it here. There was some technical maneuvering on the part of counsel on each side in an effort to avoid assuming a greater burden of proof than was legally necessary. The defondant’s answer pleaded a general denial and certain separate affirmative defenses. Mary Carmody was sworn as a witness for the plaintiff. Her testimony in chief was confined' strictly to a statement of the date of the injury of her husband and the date of his death and to the identification of her signature transferring her cause of action to the plaintiff trustee. Thereupon, by a series of questions on cross-examination, the defendant attempted to inquire into the details of circumstances of the night of May 24th. Objection was made’ to such line of examination as not proper cross-examination, and the objection was sustained. The ruling was strictly proper. It is true, as contended, that courts will usually allow' large latitude to the cross-examination of a party in interest. But this also is discretionary with the trial court. This witness was placed upon the stand again on rebuttal by plaintiff, and the whole subject was fully covered, and full opportunity for cross-examination was given. Objection, however, was made by defendant to all such examination as not proper rebuttal, and complaint is now made of the adverse ruling of the tx*ial court on such objections. It is impossible for defendant to maintain its grievance' at both ends. In the presence of the later opportunity for cross-examination, it is not in a position to complain of being deprived of such opportunity in the first instance. We think that such- evidence was properly admitted in rebuttal. In any event, such question is so largely a matter of discretion with the trial court that only an abuse of discretion would justify interference on our part.

7. Same : admissibility of evidence III. For the purpose of proving her case as against the general denial, the plaintiff introduced in evidence certain allegations contained in some of the affirmative defenses pleaded by the defendant. Thereupoxx, as in the nature of a cross-examination, the defendant offered in evidence its whole pleading, and this was objected to by the plaintiff, and the objection was sustained. Defendant’s contention is that, ixxasmuch as the plaintiff had introduced in evidence a part of its answer, it was. entitled to introduce the whole. It was entitled to introduce so much of its answer as related to the same subject. Code, section 4615. The defendant’s offer was unrestricted and included matter clearly inadmissible. It was therefore properly rejected.

8. Accident insurance : intentional injury : burden of proof : evidence IY. It is urged by appellant that a verdict should have been directed in its favor on the evidence as a whole on the ground that it conclusively appeared that the injury from which Carmody died was intentionally in-dieted by the burglar. On first impression it would seem uncandid to say that the-victim of a burglary, shot by the burglar in an encounter, was not intentionally injured; .and yet we think it must be said upon this whole record that circumstances are made to appear which fairly tend to show an intent to avoid personal injury on the part of the 'burglar. The theory of the plaintiff is that he shot only to frighten Carmody and to make his escape. The evidence would warrant a finding that, after the shot which took effect, he shot twice over the head of Carmody when he was within a-few feet of him, backing downstairs, and when he could not have failed' to inflict further injury upon him if he had tried to do so. In this respect, the ease is quite as strong for the plaintiff as was the case of Jones v. U. S. Mutual Association, supra. It is much stronger than the case of Railway Accident Association v. Drummond, 56 Neb. 235 (76 N. W. 562.) The defendant’s defense rested at this point wholly upon the question of the intent of the burglar. Such intent could be ascertained only by inference from the circumstances shown. The question of intent is usually and peculiarly a jury question. .Even the legal presumptions which might obtain as against the burglar would not necessarily obtain against Carmody or the beneficiary of his insurance. If the burden of proof were on the plaintiff as to such intent, a different question would be presented at this point. Inasmuch as the burden was upon the defendant, a verdict could not be directed in its favor without holding that it had proved the intent affirmatively and conclusively. It is the exceptional ease where the court can properly direct a verdict in favor of the party having the burden of proof. And this is especially so where a vital fact is sought to be established only by inference from attending circumstances. We • think that the intent was not proved so conclusively as to entitle the defendant to a directed verdict upon the affirmative proposition.

Appellant’s brief brings before us a number of cases wherein the same form of policy was involved and wherein it was held that recovery could not be had if the injury was intentionally inflicted by a third person. Special reliance is placed upon the case of Butero v. Travelers’ Accident Ins. Co., 96 Wis. 536 (71 N. W. 811, 65 Am. St. Rep. 61). In that ease the Supreme Court of Wisconsin considered the evidence and held it to be sufficiently strong in its showing of intentional killing to warrant the granting of a new trial and such new trial was ordered. Although the Wisconsin court did not order a dismissal of the plaintiff’s case, it did discuss the evidence, and it appeared to hold that the evidence was conclusive in favor of the defendant. The very discussion of the evidence contained in that opinion impresses us as presenting a question for the jury within the rule that has heretofore been followed' in this state. It is to be noted also that in such opinion it is assumed (though without discussion) that, if the killing was the intentional act of an assassin, it was not accidental within the meaning of the policy. Such an assumption leaves the burden of proof upon the plaintiff. A directed verdict in such case for the defendant presents less difficulty than if the burden of the affirmative rested upon it. We are constrained also to say at this point that there is another provision of the insurance certificate which should not pass unnoticed and we set it forth in the next division hereof.

9. Same : Construction of contract : liability. Y. Section 3 of article 9 of the Constitution provides as follows: “Sec. 3. Whenever a member of this association in good standing shall, through external and accidental means, receive bodily injuries which shall, independently of all other causes, immediately and wholly disable him from transacting any and every kind of business pertaining to his occupation as shown by the records of this association, he shall be paid for the loss of time occasioned thereby the sum of $25 per week, not exceeding one hundred and four consecutive weeks. Provided, that an injury received by a member in an attempt to rob said member — proof of intent to rob to be established by claimant — shall be considered an accident and the association shall be liable for weekly indemnity only, not exceeding ten consecutive weeks, as in the case of accidental injury received in any other manner.” We have italicized the particular provision to which attention is directed. Jn the case before us it is undisputed that Carmody was shot during an attempt to rob him. The proviso from the ‘ ‘ rules ’ ’ relied on as a' defense appears on its face to be inconsistent with the proviso of the constitution here quoted, if it is to be applied to an injury received during an attempted robbery of the assured. It is true that section 3 deals with injuries which result in disabilities only and not in death. But the proviso from the “rules” applies on its face to injuries causing “death or disability” inflicted by the member or any other person upon him. To render these two provisions harmonious, we would have to say that the proviso of the “rules” is not intended to apply to an injury inflicted upon the assured during an attempt to rob him. The constitution itself has singled out that specific class of circumstances and has declared that an injury so received “shall be considered an accident.” This dispenses with the necessity of proof of intent or want of intent to inflict the injury, provided only that intent to rob is proved.

It is true that this section of the constitution limits the liability of the defendant for resulting disability to a weekly indemnity of ten weeks and that it has not assumed to deal with, the question of liability in case of death. But the importance of the provision to this case is that it renders, the proviso of the rules relied on as a defense nonapplieable to a ease of robbery. If the two provisos should be deemed conflicting, then a construction should be adopted most favorable to the assured. If Carmody had survived his injuries, it is clear that he could have recovered for his disability and he could have so recovered as for accidental injuries upon proof that they were received in an attempt by the burglar to rob him. The attempt to rob is undisputed. In such case the injury “shall be deemed an accident.” Carmody did live for about ten weeks after the accident. During that period of time he was deemed under the terms of his policy to have received his injuries by accident. Did his subsequent resulting death change the accidental character of the original injury? It cannot be. The most that could be claimed here would be that, by the terms of the insurance certificate, his resulting death from this particular accident deprived him of all right of recovery for such accident. In other words, that as to such accident he was insured against disability only and not against death. This construction would be in direct contradiction to the other provisions of the insurance certificate, notably so to section 2, heretofore quoted. The important thing as to section 3 now under consideration is that it defines the kind of injury involved in this ease as an “accident” and specially provides that it “shall be deemed an accident.” It purports to insure against the same to some extent at least. This necessarily takes it out of the enumeration of exceptions which we have heretofore quoted. . These exceptions make no distinction between death and disability, so far as the nature of the liability is concerned. Neither does any distinction appear as to the nature of such liability in any other part of the insurance certificate unless it be found in section 3 here set forth. This section purports to deal with the extent of liability for disability only. It does not in terms qualify section 2 to any extent. If the various provisos of the contract are conflicting or inconsistent, then of course they should be construed most favorably to the assured. We think the contract in this case can fairly be construed as insuring against accident received by the victim of an attempted robbery in the course of such attempt; that the intentional infliction of injury by a robber in such a case is reserved from the enumeration of exceptions which are set forth in the rules; that section 3 limits the extent of the recovery for disability only; and that it does not qualify section 2 which fixes the amount of recovery in ease of death at $5,000.

To construe the insurance contract otherwise would render it naturally misleading to the assured. Under this construction the plaintiff would have been entitled to a directed verdict under the undisputed evidence and concessions in the case. Plaintiff, however, did not base her claim of recovery on this ground. But, if we should otherwise feel compelled to award new trial because of errors presented, we should deem it our duty to take notice of these provisions of the contract in support of the judgment already obtained. The injury involved is clearly within the fair scope and spirit of accident insurance. The enumeration of exceptions on the back of the certificate is sufficiently voluminous, and we ought not to add to such exceptions by unnecessary construction.

The defendant suffered no prejudicial error in the court below, and the judgment is therefore Affirmed.

Weaver, C. J., and Gaynor, Preston, and Withrow, JJ., concur.