97 N.W. 862 | N.D. | 1903
Edward and Polly Stevens, minor children of Fred W. Stevens, deceased, by their guardian, sued to recover the amount of an accident policy issued by the Continental Casualty Company. This policy was for $3,000, and stipulated o indemnify the beneficiaries therein named in case of the death of the insured through external, violent, and purely accidental causes, unless such death should result from an injury “intentionally inflicted upon the insured by himself or another person,” in which event the beneficiaries were to receive one-tenth of the face of the policy, or $300. No question, is raised as to the sufficiency of the proofs of death, and it is conceded that they were made in proper time. Plaintiffs, in their complaint, alleged that the insured died from personal injury received solely from accidental causes. The answer denied this averment of the complaint, and defendant alleged “that on or about the 13th day of August, 1903; near Bismarck, in the state of North Dakota, while the said Stevens was engaged in some disagreement, altercation, or fight with some person or persons whom he had expelled or was endeavoring to expel from the passenger train upon which he (the said Stevens) was then employed as a passenger brakeman, one of the said persons (the name of such person being unknown to the defendant) discharged a revolver or a gun loaded with powder and bullet at said 'Stevens, intentionally, and with the intent of injuring or killing said
The assignments of error present a single question for our determination. Was there sufficient evidence to justify the submission of this case to the jury, or should the court have directed a verdict, on defendant’s motion, for the sum of $200 only? In the condition of the pleadings, plaintiffs made a prima facie case by proof of the contract of insurance, and the fact that the insured died
The clause in the policy sued upon excusing defendant from full liability in case death resulted from injuries intentionally inflicted is inserted by way of proviso. ’ The rule of pleading is that stipulations added to the principal contract, which are intended to avoid the defendant’s promise by way of defeasance or excuse, must be pleaded in defense; and, where the defendant intends to rest its defense upon a fact which is not included in the allegations necessary to the support of the plaintiff’s case, it must set it out in precise terms in the answer. Coburn v. Ins. Co., 145 Mass. 226, 13 N. E. 604.
Plaintiff’s complaint s.tated a cause ot action without averments negativing the proviso upon which defendant relies to escape liability, and, ®s said by the Massachusetts court, “In the case at bar the policy is general, and insures against death or injury by external, violent, and accidental means. It is made subject to certain agreements and conditions annexed thereto. The occurrence of these conditions is to operate to defeat the policy, and this should be shown by the party relying upon them.” Defendant has followed this rule of pleading, and expressly alleged in its answer that the death of Mr. Stevens was produced through the intentional act of another, and it has therefore imposed upon itself the burden of proving the substantive fact which it was required to, and did, aver
It is urged in this case that the proofs of death which were offered in evidence by defendant established the fact prima facie that the insured was injured by the act of a negro whom he had ejected from the train. Appellant relies largely upon the evidential value of these preliminary proofs as establishing an intentional shooting. They were made by the guardian of the plaintiffs entirely upon hearsay. The statements were made to convey to the indemnitors the information that an event had happened which entitled the beneficiaries, under the insurance contract, to indemnity, because the insured had lost his life through external, violent, and accidental 'causes. Their purpose was effected, both as to the insurer and the insured, when the company was advised of the fact of the accident, and the circumstances surrounding it. Recitals in preliminary proofs of death, based upon hearsay, and conveying mere conclusions, which, in their nature, must have been, and were understood' as, based upon hearsay, so far as the party making them was concerned, cannot ordinarily be considered as admissions or estoppels, so as to prevent a showing of the true facts upon the trial. Home Benefit Ass’n v. Sargent, 142 U. S. 691, 12 Sup. Ct. 332, 36 L. Ed. 1160; Ins. Co. v. Schmidt, 40 Ohio St. 112; Bentz v. Ass’n, 40 Minn. 202, 41 N. W. 1037, 2 L. R. A. 784; 2 Bacon’s Ben. Soc., section 472. But here the recital in the proof of death that deceased was shot by a negro whom he had ejected from the train is not prima facie evidence, or any evidence at all, in favor of the defendant company, that - the insured was shot by a negro, or that he had ejected a negro from the train and was shot by him; and it could not be relied upon by defendant as proof of such matters even in the absence of any evidence from the plaintiff tending to contradict the statement. Such statements are received to
A guardian cannot make admissions against the interests of his. wards. This action is being prosecuted by and in the name •of the minor children of the deceased, and they are represented in the action by a guardian to protect their interests, and not to make admissions against their interests, whereby their interests may be jeopardized. If the insured did not in fact eject a negro from the train, and was not in fact shot by the negro so ejected, the guardian of the minors (beneficiaries under .the policy) could not make an admission that such were the facts, and bind his wards by an admission contrary to the truth; while, on the other hand, if their parent was shot by a negro he had ejected from the train, this was a link in the chain of circumstantial evidence tending to show an intentional injury, which defendant assumed the burden of proving by competent evidence, and it could not be proven by an admission of the guardian, based alone on hearsay, made in another proceeding, and without consideration of the possible issues here presented. In Wright v. Miller, 7 N. Y. Ch. 256, 262, the court said: “The answer of an infant, by his guardian, is in truth the .answer of the guardian and not of the infant; hence the infant is not bound by his answer, it cannot be read against him, and no decree can be made on the admission of facts which it contained. Where there are infant defendants, and it is necessary, in order to entitle the complainant to the relief he prays, -that certain facts should be before the court, such facts, although they might be the subject of admission on the part of the adults, must be proved against the infants.” Seaton v. Tohill (Colo. App.) 53 Pac. 170; Phillips v. Dusenberry, 8 Hun. 348; Sherman v. Wright, 49 N. Y. 227. In Laidley v. Kline, 8 W. Va. 218, it is said that infants are deemed and taken to be incapable of making contracts or admissions in civil transactions, ordinarily, that are binding upon them. In Seaton v. Tohill (Colo. App.) 53 Pac. 170, it is said: “The rule is well settled that an infant cannot be bound by the admissions of 'his guardian, unless they are for his benefit, nor by his errors or omissions in his answer and pleadings. The court will suffer no advantage to be taken of those acting in the infant’s behalf, to the detriment of the infant.” Lloyd v. Kirkwood, 112 Ill. 338; Hutchinson v. McLaughlin (Colo. Sup.) 25 Pac. 317, 11 L. R. A. 287;
Upon the entire evidence, vqe think the case was properly submitted to the jury. The judgment appealed from is affirmed.