193 P. 566 | Mont. | 1920
delivered the opinion of the court.
This action was brought by the plaintiff as beneficiary in an accident insurance policy issued by the defendant company to John Withers, plaintiff’s son, which policy provided indemnity for loss of life, limb, sight or time by external, violent and accidental means, excluding suicide or attempts
The proof introduced was very brief. The testimony on the part of plaintiff was given by the plaintiff and a sister of deceased and an undertaker residing in Butte, none of whom were present in Nevada, the place where the insured met his death, and none of whom purport to testify as to the cause of death except that when he was brought to Butte for burial he had a wound upon his neck over the jugular vein. In
This testimony was received over objection made at the trial. The defendant offered no testimony, and the foregoing is a concise statement of the case as made by the plaintiff. The defendant moved for a nonsuit upon the ground that the evidence failed to disclose that the death of the insured was caused solely by external, violent and accidental means, excluding suicide, sane or insane, or any attempt thereat, sane or insane, which motion was by the court denied. The court granted a motion for directed verdict made by plaintiff, after denying a motion for nonsuit. From the judgment and an order denying a motion for new trial defendant appealed.
No eitation of authority is given in support of the demurrers to the complaint. In our opinion the complaint was sufficient. In fact, in its essential provisions it is very similar to the complaint in Travelers’ Ins. Co. v. McConkey, 127 U. S. 661, 32 L. Ed. 308, 8 Sup. Ct. Rep. 1360 [see, also, Rose’s U. S. Notes], hereinafter cited.
The testimony as to the incidents connected with the death
In cases upon accident policies containing provisions similar to those in the policy sued upon, the burden is, of course,
It is asserted by defendant that the evidence is as susceptible of being construed as establishing murder of the insured by his wife, or at least an intentional killing of the insured by her act, as of establishing death by accident.
Upon the questions urged, we find many decisions. In the case of Travelers’ Ins. Co. v. McConkey, 127 U. S. 661, 32 L. Ed. 308, 8 Sup. Ct. Rep. 1360 [see, also, Rose’s U. S. Notes], it was held that the claimant under the policy must establish by direct and positive proof that the death or injury of the insured was the result, not only of external and violent, but of accidental means, and that the requirement of direct and positive proof does not make it necessary to establish the fact and circumstances of death by persons who were actually present when the insured was injured, but that such proof may be made by circumstantial evidence. Also it was there held that suicide is not to be presumed, nor is it to be presumed that the insured was murdered.
In the leading case of Jones v. United States Mut. Acc. Assn., 92 Iowa, 652, 61 N. W. 485, the defendant was shot and killed by another during a quarrel. The court said: “Appellant asked several instructions to the effect that the burden of proof was upon the plaintiff to show that the death of Jones, the beneficiary in the policy, was the result, not only of external and violent means, but also of accidental means. In other words, it was claimed that the burden was upon the plaintiff to show that the death of Jones was accidental, within the meaning of the policy. The court told the jury that if plaintiff had ‘shown by the fair weight of the evidence that the assured came to his death as the result of a pistol shot held in his own hands, or in the hands of another, then the law will presume that the shot was accidental, and that it was not inflicted with murderous or suicidal intent. And under such
The rule is thus stated in 1 Corpus Juris, 475 (section 278): “Where, however, it is apparent that the injury to or death of the insured was the result of external and violent means, and the issue is as to whether it was due to an accident within the meaning bf the policy, or to some cause excepted by the policy, the presumption is in favor of accident and against the existence of facts bringing the case within any of the exceptions of the policy, such as insanity of the insured, intentional injury inflicted by a third person * * * and suicide. These presumptions may, however, be overcome by facts and circumstances establishing the contrary.”
It is apparent, therefore, that under the great weight of authority plaintiff’s evidence made a prima facie case. As
The plaintiff having established prima facie the allegations of the complaint, and there being no other evidence offered, the trial court was not in error in directing verdict for plaintiff.
The judgment and order appealed from are affirmed.
Affirmed.