221 Mass. 540 | Mass. | 1915
The plaintiff is the widow of Curtis Nichols and the beneficiary named in a certificate of insurance issued by the defendant, providing for the payment to her of a certain sum in the event of the death of her husband “wholly and entirely by external, violent, and accidental means.” He was found dead in the early morning of July 25, 1912, in the railroad yard in West Springfield. At the close of the evidence the defendant requested the judge
There was evidence that before reaching Springfield the train was “jerky” in stopping and starting, but all the testimony tended to show that at the place where Nichols was found, which was about half a mile west of Springfield, the train was running smoothly, with no unusual jerk or jolt, at the rate of about twenty-five to thirty-five miles an hour, on a level grade where there was a slight curve. While it was warm during the day it grew cooler toward night, and weather observations taken at Boston showed that at two o’clock on the morning of July 25 the weather was clear and the temperature 61°, and at three o’clock it was 60°. Mrs. Nichols testified that her husband suffered “from the heat or shortness of breath, and that when it was excessively hot ... he could not stay in a closed room; . . . sometimes he had slight attacks of indigestion, and then he always felt as if he wanted to get to the open window; . . . that when her husband would get up and go to the window at nights he might stay there probably five minutes;” that he “was a wonderfully happy person; never had fits of melancholy or moroseness, or anything of that sort;” and several letters from the assured to his wife and children were in evidence, indicating a normal and contented mind.
On such evidence, especially from the place where the body was found, from the marks upon it and the fractured skull and cheek bone, the jury would be fully justified in finding that Nichols met his death because of external and violent means; and further, that in some unexplained way he fell against, or threw himself against, the screen in such a way that it became broken and he fell from the berth to the ground. When a man is found dead under such circumstances, when the marks on the body show the cause
In Standard Life & Accident Ins. Co. v. Thornton, 40 C. C. A. 564, the facts were in many respects similar to the facts in the case at bar. In that case the insured was a passenger on a night train leaving Memphis, Tennessee, at 9 p. m., for Jasper, Alabama, where he expected to arrive at four o’clock the next morning. He was seen sitting ,in his berth in the sleeping car at twelve o’clock. This was the last seen of him alive. At 3.25 A. M. the porter went to call him and found the berth empty. Later the dead body of the insured was found beside the railroad track, three and one half miles from Jasper. From what part of the train he fell, or how he fell, or what he was doing when he fell, was entirely in doubt and was a matter of conjecture. In an action to recover on an accident
Where, under a policy" like the one before us, all the facts showing death by external and violent means are in evidence and the only reasonable inference to be drawn from them is the inference of death by design, volition or intention, then as matter of law there is no question of accident for the jury to consider. But where all the facts are not disclosed, or where they are in dispute, so that opinions properly may differ as to the conclusions to be drawn from them, then it is the province of the jury to pass on them and to decide whether the death is the result of accident or design.
In the ease last cited it does not appear from what part of the train the deceased fell, and in the case at bar it does appear that the insured fell through the screen in the window of his berth. In our opinion this circumstance is not enough to distinguish the two cases.
In the present case there are not sufficient facts before us to assure us in deciding that the only reasonably just conclusion from them is that of suicide or death under some of the prohibited risks of the policy. In the ordinary negligence case, like those cited on the defendant’s brief, where the burden of proof is on the plaintiff and the matter is conjectural, with no decisive evidence showing the plaintiff’s care or the defendant’s negligence, there is as matter of law no question for the jury, because the burden resting upon the plaintiff has not been sustained. Here there is a'presumption, in the plaintiff’s favor, of death by accident, although it is merely a presumption of fact and not of law; and while the burden is upon her to establish the external, violent and accidental cause of her husband’s death, this inference in her behalf makes her case a proper one, so far as the law is concerned, for the jury to pass on.
2. The policy stipulated that no indemnity was to be paid if death resulted from an injury “ caused wholly or in part ... by . . . voluntary exposure to unnecessary danger, . . . nor for any injury which the member, by the exercise of ordinary care, prudence, and foresight, might have averted or prevented, or to which the member’s own negligence shall have contributed.”
If these conditions of the policy are broken there can be no recovery thereunder; if the deceased met his death by reason of his own want of care or his voluntary exposure to unnecessary danger his widow is not entitled to a verdict against the defendant. These provisions of the policy are exceptions preventing a recovery if they are violated, but because they are exceptions barring the member from recovering judgment, and causing a forfeiture of the policy, they are matters of affirmative defence and must be alleged and proved by the defendant.
Under similar language, in a policy of insurance, it is settled that the burden of showing that the death or injury was within the excepted or prohibited risks of the policy is upon the defendant. Garcelon.v. Commercial Travellers’ Eastern Accident Association, 195 Mass. 531. Anthony v. Mercantile Mutual Accident Association, 162 Mass. 354. Keene v. New England Mutual Accident Association, 161 Mass. 149. Badenfeld v. Massachusetts Mutual Accident Association, 154 Mass. 77. Coburn v. Travelers’ Ins. Co. 145 Mass. 226. Freeman v. Travelers’ Ins. Co. 144 Mass. 572.
Where the burden of showing that the insured came within either of these exceptions is upon the defendant, as in the case at bar, and where different inferences might be drawn from the evidence, a question of fact for the jury to pass upon is presented, and the presiding judge could not rule as matter of law that the defendant was entitled to a verdict because the member was guilty of negligence and exposure to danger. Worcester Color Co. v. Henry Wood’s'Sons Co. 209 Mass. 105,110. Anthony v. Mercantile Mutual Accident Association, and Garcelon v. Commercial Travellers’ Eastern Accident Association, supra.
3. As originally written the limit of recovery under the policy was $5,000, but in 1911 the policy was amended by providing, in case of death “while riding as a passenger on a passenger train,
4. Following the death of the insured an inquest was held, and in answer to interrogatories of the plaintiff the defendant annexed the report of the inquest showing that there was no suicidal intent on the part of the deceased, together with a copy of a letter from the plaintiff’s attorney to the defendant enclosing it with a claim of indemnity under the policy. The judge permitted this report of the inquest to be read to the jury, instructing them that they were not to take the report as evidence of the manner of death or of its cause, but to use it solely for the purpose of deciding whether the report, with the other information obtained by the directors, ought to have satisfied them that the cause of death was an accident within the terms of the policy. Of course the report of an inquest is not admissible as substantive evidence. Jewett v. Boston Elevated Railway, 219 Mass. 528. This report was received and kept by the defendant, and we think it was admissible in evidence for the limited purpose for which it was offered and for which the jury were to examine it. The policy expressly required that satisfactory proof of the external, violent and accidental means of death should be furnished to the directors; and therefore the report of the inquest was admissible as bearing on this question. : Traiser v. Commercial Travellers’ Eastern Accident Association, 202 Mass. 292. j
The evidence as to the “proof” submitted by the plaintiff to the defendant might have been found to be such as ought to have been “satisfactory to the board of directors” acting as reasonable men. Upon this point the case is indistinguishable from Traiser v. Commercial Travellers’ Eastern Accident Association.
We have examined all the other requests for instructions
Exceptions overruled.
In cross-examination the plaintiff testified “that her husband was approximately five feet, seven inches tall, and weighed probably two hundred pounds; in build he was very large; his feet were small, but his legs were very large, and his arms were large; his body also was large.”
The following rulings were asked for by the defendant and were refused, subject to its exceptions.
"8. There being no evidence of any. accident or of any unusual condition
“9. The size of the window screen, through which the assured went, being so small that he could get through only by going at full length, and the space in the berth so small and confined and so situated in reference to said screen that the assured could not fall against the said screen so as to pass through the same without his own violition, sane or insane, the jury is directed to return a verdict for the defendant.
“10. If the jury find that the size of the window screen, through which the assured went, was so small that he could not get through except by going at full length and that the space in the berth was so small and confined and so situated in reference to said screen that the assured could not fall against the said screen so as to pass through the same without his own volition, sane or insane, the jury should return a verdict for the defendant.”
“13. Upon all the evidence, the jury can in no event assess damages for a greater amount than §5,000.”