205 Wis. 95 | Wis. | 1931
The insured died from the effects of carbon monoxide gas generated by an automobile in the garage at the rear of his home. At the time of his death deceased was fifty-seven years of age. For twenty-seven years he had been cashier of the Farmers & Merchants State Bank of River Falls. He was also the general executive head of the bank. He was highly regarded in the community and had many friends, a fine home, was generally regarded as a man of substance, and took pride in his position in the community.
For some time prior to his death the affairs of the bank had not been in good shape. Following an examination of the bank on August 13, 1929, the commissioner of banking instructed the directors of the bank to meet him at Madison. This meeting was held on September 12, 1929, and was attended by five of the directors, including Mr. Wiger, the insured. The commissioner reviewed the condition of the bank and made several recommendations looking to remedial measures. One of the recommendations was that Mr. Wiger
It appeared that deceased had additional property in Upper Michigan and also in Washington. Some of this consisted of timber lands on which mortgages were outstanding or title to which was in litigation. There is no evidence in this case as to its value.
The garage in which the insured’s body was found is located on an alley back of the residence of the insured. It is twenty-one feet long and eighteen and one-half feet wide, and designed to hold, two cars. It is of hollow-tile construction with concrete floors and a ceiling of insulite. On the side towards the house there is one ordinary door which opens in. It does not close automatically. On the alley side are two sets of triple doors. On the morning of Wiger’s death two cars were stored in the garage, a Buick
There is evidence to the effect that Mr. Wiger knew of the dangers from monoxide gas, and had commented within two months of his death upon the fact that a man ought to know better than to start a car in a garage without opening the doors. From all this the appellant contends that the evidence points to a single conclusion that the deceased committed suicide; that it is plain that his financial affairs and the affairs of the bank were approaching a crisis; that he was to be deposed from the work which gave him a livelihood, humiliated before the community, caused to lose the friendships which he treasured so highly, and subjected to the possibility of further embarrassment upon the discovery of irregularities that had not then come to the knowledge of the commissioner. He knew the effects and properties of monoxide gas. There was no need to run the motor for the purpose of warming up the engine. The absence
The respondent’s contention is that the evidence tends clearly to show accidental death ;■ that the insured was robust and healthy, happy and contented with his domestic relations; that he was in the bank the day before his death and at the close of the bank suggested to the assistant cashier that they go out and see one Murphy about a past-due note. It started to rain and they called up Mrs. Murphy on the telephone and found out that he was not in. He said he would call some other time. The notes were left in the note pouch at the bank, and Mr. Wiger and the assistant left the bank at the same time that night. After Mr. Wiger’s death the Murphy notes were found in his pocket. On the night of September 26th he informed Henry Zorn that he was going out in the country early in the morning, and on the morning of the 27th the deceased was seen on the streets of River Falls going to the bank. On the morning of the 27th he had his breakfast, read the newspaper, and went out to the garage, and was never thereafter seen alive. The testimony of Henry Zorn was that he saw Mr. Wiger on the night of September 26th, and played whist with him; that he appeared about the same as usual and stated that he hoped it would not rain all night because he had to go into the country early in the morning.
The same comments that were made by this court in Fehrer v. Midland Cas. Co. 179 Wis. 431, 190 N. W. 910,
“The defense of suicide is strongly and ably urged by counsel for the defendant. The law is well settled, based on human experience, that there is a strong presumption against suicide. The love of life and the immorality of taking one’s own life turn the mind against suicide. So it is that when suicide is alleged in.defense the burden is on the defendant to establish such fact. In such a case, where the evidence is wholly circumstantial, as in this case, every other reasonable hypothesis to account for the death must be excluded to take the case from the jury.”
We think the facts in this case are no more indicative of suicide than were the facts in the Fehrer Case. Certainly they are sufficiently strong to justify the jury in coming to the conclusion of suicide, but that does not by any means exclude a reasonable inference that the insured met his death by accident. He was apparently in good health. He was on good terms with his family, and had plans for the morning’s activities. He had evidently gone to the bank to get a note which he proposed to collect that day. The jury might very easily come to the conclusion that he had started the motor, forgetful of the fact that the car was on jacks; that he had stepped out of the car to remove the jacks, and that he had been overcome during that process. There is evidence that the action of monoxide gas poisoning can be instantaneous. It is entirely possible that the deceased got a concentrated dose of the gas while bending over to operate the jack with the hand lever. We think the cprestion of suicide was clearly a jury question.
The second contention of appellant is that even though the factor of suicide be eliminated, this was not a death by accidental means. The policy requires not only that the death be accidental, but that the means of death be accidental. Since the means of death were set in motion by the voluntary act of the decedent, and since the consequences
“There are two clearly defined lines of cases on this question. One holds that, where an unusual or unexpected result occurs by reason of the doing by insured of an intentional act, where no mischance, slip, or mishap occurs in doing the act itself, the ensuing injury or death is not caused through accidental means; that it must appear that the means used was accidental, and it is not enough that the result may be unusual, unexpected, or unforeseen.
“The other line of cases holds that, where injury or death is the unusual, unexpected, or unforeseen result of an intentional act, such injury or death is by accidental means, even though there is no proof of mishap, mischance, slip, or anything out of the ordinary in the act or event which caused such injury or death.”
The only case in Wisconsin that .appears to have considered this question is the Fehrer Case, heretofore cited. In that case the evidence was such that the court assumed that the deceased actually turned on the gas in his bathroom while he was in a dazed condition, and that he thereafter fell into the bath tub and was asphyxiated. The court says:
“Was his death the result of ‘violent external and accidental means’ within the meaning of the policy? We have no difficulty in arriving at our conclusion on this point. The law is well established that death by asphyxiation through accident comes within the term ‘violent external and accidental means.’ ”
The court cites to this point Paul v. Travelers’ Ins. Co. 112 N. Y. 472, 20 N. E. 347.
In Lewis v. Ocean Acc. & G. Corp. 224 N. Y. 18, 120 N. E. 56, 7 A. L. R. 1129, the insured came to his death as a result of pricking a pimple on his lip. He died as the result of an infection, evidently caused by the presence of
“Unexpected consequences have resulted from an act which seemed trivial and innocent in the doing. Of itself, the scratch or the puncture was harmless. Unexpectedly it drove destructive germs beneath the skin, and thereby became lethal. To the scientist who traces the origin of disease there may seem to be no accident in all this. ‘Probably it is .true to say that in the strictest sense, and dealing with the region of physical nature, there is no such thing as an accident.’ Halsbury, Ld. Ch., in Brintons v. Turvey, L. R. [1905] A. C. 230, 233, 2 Ann. Cas. 137. But our point of view in fixing the meaning of this contract must not be that of the scientist. It must be that of the average man. Brintons v. Turvey, supra; Ismay v. Williamson, L. R. [1908] A. C. 437, 440, 77 L. J. P. C. n. s. 107, 99 L. T. n. s. 595, 24 Times L. Rep. 881, 52 Sol. Jour. 713. Such a man would say that the dire result, so tragically out of proportion to its trivial cause, was something unforeseen, unexpected, extraordinary, an unlooked-for mishap, and so an accident. This test- — the one that is applied in the common speech of men — is also the test to be applied by courts.”
In Lickleider v. Iowa State Traveling Men’s Asso. 184 Iowa, 423, 166 N. W. 363, 168 N. W. 884, 3 A. L. R. 1295, the court said:
“It makes no difference whether the injured man or some other person voluntarily sets in motion the first of a series of events which, in connected line of ¡causation, results in his injury or death. If, to use the language I have quoted, the resulting injury and violence to him ‘unexpectedly took' place,’ or was ‘an unexpected result from a known cause,’ or was produced ‘without design or intention,’ or was ‘an unusual and unexpected result, attending the performance of a usual or necessary act,’ or was an ‘event happening without the concurrence of the will of the person by whose agency it was caused,’ or if it was ‘caused or produced without design,’ it falls directly within the letter and spirit of the*104 definition which has been placed upon the words by the most competent lexicographers, as well as by our most eminent jurists who have given attention thereto.”
The court, in the same case, in commenting on the words “accident” and “accidental” states that they “have never acquired' any technical meaning in law, and when used in an insurance contract they are to be construed and considered according to the common speech and common usage of people generally.”
In Cantrall v. Great American Cas. Co. 256 Ill. App. 47, the court states, in commenting on the death of the insured by monoxide gas poisoning:
“It is firmly established that an injury or death caused by the unconscious or involuntary inhalation of poisonous gases is an injury or death caused by accidental means.”
In Brown v. Continental Cas. Co. 161 La. 229, 108 South. 464, a physician voluntarily inhaled chloroform for headache and insomnia, and lost his life due to an overdose. It was not contended that he committed suicide, but it was contended that he did not lose his life by injuries occurring through accidental means. The court said:
“We do not believe that the doctrine stated, making a distinction between ‘accidental death or injury’ and ‘death or injury by accidental means,’ means that, under a policy of insurance against death or injury by accidental means, the insurance company is not liable for an accidental death or injury resulting from a voluntary act in which the insured did not intend or anticipate a fatal or injurious result.”
The court goes on to state that the element of the unexpected was present in this case; that the insured inhaled more chloroform than he expected to inhale. The means or cause of his death was not that he intentionally inhaled chloroform, which he had done many times before, but that he unintentionally inhaled too much chloroform.
In Townsend v. Commercial Travelers Mut. Acc. Asso. 231 N. Y. 148, 131 N. E. 871, 17 A. L. R. 1001, the insured died as a result of an infection caused by a hypodermic needle which his daughter had used at his request. It was held that the death was by accidental means.
In Vennen v. New Dells L. Co. 161 Wis. 370, 154 N. W. 640, the employee drank polluted water and became ill with typhoid fever. It was held that the fact that the injury might have occurred from carelessness or negligence does not affect the conclusion that it was accidentally sustained. The court says:
“As declared in Northwestern Iron Co. v. Industrial Comm. 154 Wis. 97, 142 N. W. 271, ‘In giving construction to such statutes words are to be taken and construed in the sense in which they are understood in common language, taking into consideration the text and subject matter relative to which they are employed.’ The words should be given, as intended by the lawmakers, their popular meaning. Sadowski v. Thomas F. Co. 157 Wis. 443, 146 N. W. 770. ‘A very large proportion of those events which are universally called accidents, happen through some carelessness of the party injured, which contributes to produce them. . . .Yet such injuries, having been unexpected and not caused intentionally or by design, are always called accidents, and properly so.’ ”
It is our conclusion that the term “accidental means” must be interpreted according to the usage of the average man. So interpreted we have no doubt that the means of death in this case must be designated as accidental. To eliminate
Appellant assigns as error the refusal of the court to give the following instruction requested by the appellant:
“The burden of proof is on the plaintiff to show that the death of C. N. Wiger resulted directly from bodily injury independently and exclusively of all other causes, and that such bodily injury was effected solely through external, violent, and accidental means.”
The instruction given by the court was as follows:
“I charge you as a matter of law that monoxide poisoning is within the terms of the contract of insurance which I have just read to you. It is death caused by bodily injury through external, violent, and accidental means, unless the deceased came to his death by the taking of his own life intentionally either when sane or insane.”
The instruction requested was properly refused for the reason that there was no issue of fact to which it could relate. It is elementary that burden of proof, in the sense of the risk of non-persuasion or obligation to convince a jury, exists only in connection with an issue of fact. In view of what has heretofore been said with reference to the meaning of the policy, we are satisfied that the defense of suicide presented the only issue of fact in this case and that the instruction given by the trial court was correct.
By the Court. — Judgment affirmed.