26 A.2d 898 | Pa. | 1942
This is an appeal from the refusal of the court below to grant plaintiffs a new trial. The plaintiffs, Eleanor F. O'Neill and Montgomery Trust Company, guardian of the estates of Mary K. O'Neill and Margaret E. O'Neill, minors, brought suit against the Metropolitan Life Insurance Company for $50,000, with interest from May 29, 1937. The claim was based on three policies of insurance, herein designated respectively as policies A, B, and C, insuring the life of Dennis A. O'Neill, husband of Eleanor F. O'Neill and father of the two minors above named, in the respective sums of $20,000, $25,000, and $5,000. Policy A was dated January 28, 1930; the other two policies were dated November 20, 1934. Attached to policy A was a "rider" agreeing to pay "to the beneficiaries *234 . . . in addition to the amount payable according to the terms of said policy" the sum of $20,000, "upon receipt . . . of due proof of the death of the insured, as the result, directly and independently of all other causes, of bodily injuries sustained through external, violent and accidental means, provided (1) . . . (2) . . . (3) . . . (4) . . . (5) . . . (6) that death shall not have resulted from bodily injuries sustained while participating in aviation or aeronautics except as a fare-paying passenger, nor while the insured is in the Military or Naval Service in time of war, nor as the result of violation of law by the insured." Policies B and C had "riders" attached to them containing the same provision as to paying additional amounts in the sums respectively of $25,000 and $5,000 upon the same "due proof of death through external, violent and accidental means, provided (1) . . . (2) . . . (3) . . . (4) . . . (5) . . . (6) that death shall not have resulted from bodily injuries sustained while participating in aviation or aeronautics, except as a fare-paying passenger on a licensed aircraft operated by a licensed pilot, nor sustained while or as a result of participating in or attempting to commit an assault or felony, nor sustained while the insured is in the Military or Naval Service in time of war."
Plaintiffs' statement of claim sets forth, inter alia: "The said Dennis A. O'Neill died on May 29, 1937, in his thirty-eighth year, while the policies and supplemental contracts thereto were in full force and effect, . . . The said death was due directly and independently of all other causes to bodily injuries sustained through external, violent and accidental means, and was not the result of self destruction, or caused by or contributed to, directly or indirectly, or wholly or partly, by disease, or by bodily or mental infirmity, and did not result from bodily injuries sustained while participating in aviation or aeronautics, nor sustained while or as a result of participating in or attempting to commit an assault or felony, *235 nor while the insured was in Military or Naval Service in time of war, nor as the result of violation of law by the insured.
Due proofs of the insured's death were filed with the defendant and the face of the policies totaling $50,000 was paid to the plaintiffs but payment of the additional total sum of $50,000 claimed was refused."
At the trial the widow plaintiff testified that during the early morning of May 29, 1937, she and her husband returned to their home in Norristown after having spent the preceding hours at an Inn. She and her husband then quarrelled and after "pushing him away" she went to the side porch of their home. She then heard one of her children crying upstairs and she ascended the stairway and there noticed blood on the wall. She met her father and from what her father told her she "realized her husband was hurt" and she then summoned a physician. She then saw her husband "lying on the floor unconscious". Shortly after the physician arrived, her husband died.
Mrs. O'Neill's father, Joseph J. McGinley, who was sixty-nine years of age at the time of the insured's death, testified that on the morning above identified he "heard a noise" and "rushed out of" his room to the hallway. "It was dark" and the witness' eyes were "not so good". He "became excited . . . thinking it might be a kidnapping or robbery". He "rushed back to his room and turned on the light", picked up his razor and "started pell-mell for the first floor". He added: "Near the top of the steps I ran into an object. I did not know who it was. I could not see in the dark." He and a man "grabbed each other" and "both went down twelve flights of steps head over heels." He said: "I was lying on the broad of my back . . . and Dennis O'Neill was lying on my feet. I was the heaviest of the two." A short time later O'Neill went to the living-room and the witness went upstairs and shortly afterwards the doctor came and told the witness "that O'Neill was dead".
Dr. McCarthy described the fatal wound as "a four inch gash in his neck, exposing [on the left side] the *236 carotid artery, which was severed", resulting in a hemorrhage.
On cross-examination both Mrs. O'Neill and her father were asked if they had not within an hour or two of O'Neill's death given an entirely different version of this tragic happening. The other version as allegedly given to H. A. Cressman, reporter for the Norristown Times-Herald, and to others was that O'Neill had become intoxicated at Bungalow Inn and had quarrelled with Mrs. O'Neill. He had driven her home, ordered her out of the car and he then drove away. Later after Mrs. O'Neill had undressed, O'Neill returned and in a belligerent mood, called to his wife to come downstairs. She refused to do so. She finally went downstairs, to try to quiet her husband. He struck her and put her out of the house, though she was clad only in undergarments. McGinley had awakened and heard O'Neill strike Mrs. O'Neill and heard him declare he was going upstairs to put McGinley out of the house. McGinley then seized his razor in self-protection and stood at the top of the stairs. After O'Neill struck McGinley twice in the face, despite the latter's remonstrance, McGinley in self-defense struck at O'Neill, causing the fatal injury described. Witnesses Harper, Murphy, Eiler and Flynn gave testimony substantially similar to Cressman's. Edward Murphy, an investigator for the defendant company, testified that in a conversation with Mrs. O'Neill on or about August 26, 1937, in which she told him about her husband's "pushing her down the stairs" on the morning in question and "striking her twice very severely and put her outside" and that he threatened to "go upstairs and get that old man of yours and put him out too." Witness McGlathery testified that when O'Neill left the Inn on the morning in question "he felt his drinks" and "talked very nasty, seemed to be provoked". The jury found for the defendant.
Appellant complains that the trial judge did not submit this case to the jury under proper instructions. The *237 fifth assignment of error is based upon the instruction to the jury that "the plaintiffs must [in respect to policies B and C] show to your satisfaction by a preponderance of the evidence that Dennis A. O'Neill in each of the policies as the provisions read, did not die while or as a result of participating in or attempting to commit an assault or felony" and [in respect to policy A] that death was not "the result from bodily injuries . . . or violation of law" by the insured.
Recovery of the sums sued for in this case required proof of the death of the insured, "as a result, directly and independently of all other causes, of bodily injury sustained through external, violent and accidental means". In Watkins v.Prudential Insurance Co.,
In Hutton v. States Accident Ins. Co.,
"Death from accidental means" being what the foregoing cases state it to be, plaintiffs had the burden the court below cast upon them. Furthermore, by their pleadings the plaintiffs assumed the burden of proof, as the quotation, supra, from the statement of claim shows. The affidavit of defense accepted the issue tendered by *239
denying the plaintiffs averments as to the insured's non-violation of law, etc. "The fundamental principle is that the burden of proof in any cause rests upon the party who as determined by the pleadings or the nature of the case asserts the affirmative of an issue, . . . One alleging a fact which is denied has the burden of establishing it. . . . The affirmative of an issue, as thus used, includes any negative proposition which the person asserting the affirmative may have to show.": 20 Am. Jur. sec. 135, pgs. 138-9. See also Lillie M. Otto,Adm., v. Western Saving Fund Society,
In Real Est. Trust Co. v. Metropolitan Life Ins. Co.,
Appellant relies on the case of Bowers v. Great Eastern C.Co.,
What this court there said about burden of proof was dictum; it was said on an issue not raised and on a matter not involved. If the defense was "affirmative in character" it was because the parties by their pleadings made it so; the partieshere did otherwise, as is pointed out above. Furthermore, a defense affirmative in character *241
does not always cast the burden of proof upon a defendant. Wigmore on Evidence, 3rd. ed., vol. 9, sec. 2486, p. 274, says: "It is often said that the burden is upon the party having inform the affirmative allegation. But this is not an invariable test, nor even always a significant circumstance; the burden is often on one who has a negative assertion to prove; a common instance is that of a promisee alleging non-performance of a contract." Another example is found in actions for malicious prosecution where a plaintiff must show want of probable cause for his having been prosecuted. See Altman v. Standard Refrig.Co., Inc.,
Appellants also quote in support of their position what we said in Watkins v. Prudential Ins. Co., supra, at p. 508 as follows: "When a defendant seeks to avail itself of the substantive defense reserved in the policy that the loss was due to a cause or risk specifically excepted in the policy,3 the defense becomes an affirmative one and has the burden of proof." We made a similar statement in Zenner v. Goetz(Travelers Ind. Co., Aplnt.),
The first, seventh, eighth, and ninth assignments of error are based on the court's instructions as to the alleged unlawfulness of the insured's conduct at the time in question. The court said: "His acts, if you believe the witnesses for the defendant company, were in violation of law and constituted an assault or an attempt to commit an assault." Appellants argue that "before the insured can be said to be guilty of a felony, or an assault, or violation of law within the meaning of the policies, he must have been such an aggressor that he could reasonably foresee that as a result of his own actions it was likely that he would be killed. Considering the evidence it is apparent that the insured in the present case was not such an aggressor." We cannot agree that the evidence does not show the insured to have been the aggressor on the morning in question. It was his acts which caused his father-in-law to believe that "a kidnapping or robbery" was taking place downstairs and to pick up his razor and open it, "thinking there was something radically wrong". Nor can we agree that in order to adjudicate the insured as a violator of law within the meaning of the policies, he had to be so aggressively lawless as to make him "reasonably foresee that as a result of his own actions it was likely he would be killed". If he had foreseen the tragic consequences of his acts, it is reasonable to believe he would have desisted from them. No one contends that the insured intended to invite his own destruction. Persons who drive automobiles at a lawless and excessive rate of speed usually do not intend to kill themselves, but nevertheless if their death does result from such an action, it cannot be contended that they were not engaged in a lawless act. "To avoid liability [in a case like this] it must be established that the violation of law was the cause of, or had some causative connection with the accident": Couch Encyclopedia of Ins. Law, Vol. 6, p. 4512, sec. 1736. Wells v. New England M. L. Ins. Co.,
The sixth and seventh assignments of error are based upon excerpts from the charge which according to appellants amounted to a submission of the defendant's testimony to the jury "with the same weight and value as plaintiffs". We see no merit in these assignments. The trial judge made it clear to the jury that the credibility of the witnesses was "the most important question in this case". The testimony of the witnesses called by the defense to show that Mrs. O'Neill and her father had given versions of this fatal affair which varied from the story they told on the witness stand and which was less favorable to plaintiffs' claim was competent to affect the credibility of these two witnesses. The verdict of the jury indicates that it concluded that plaintiffs had failed to meet the burden of proof resting upon them, and we find that on this record the verdict was contrary to neither the law nor the evidence.
All the assignments of error are overruled.
The judgment is affirmed.