
    L. E. Ellis, Administrator, Appellee, v. Interstate Business Men’s Accident Association, Appellant.
    1 INSURANCE: Accidental Injuries — Insurer as Final Arbiter. A policy which provides that the insurer shall not be liable for injuries from the discharge of firearms unless the accidental character of the discharge shall be established by at leást one eyewitness of the event, other than the insured, “provided * * * the directors may waive this limitation when they are satisfied that said discharge was accidental,” simply means that there shall be no liability if the directors, as reasonable men, and acting reasonably, find that the accidental nature of the discharge has not been established. And the insurer may not constitute himself the supreme arbiter of this fact question.
    2 INSURANCE: Accident — Res Gestae, Etc. The res gestae attending an injury and the condition of matters and things relating thereto, without any direct evidence as to what took place at the very instant of time when the injury was received, may be sufficient to establish, to a reasonable certainty, the accidental character of the injury.
    PRINCIPLE APPLIED: An automobile was out of repair. Deceased went to the garage to work upon it. Soon thereafter, he returned to his house for dinner. His conduct was not unusual. After dinner, he returned to the garage. Within two or three minutes, he, dressed in his overalls and with a wrench in his hand, hurriedly returned to the house, hurriedly called to his wife, and said: “I am hurt. I feel as if something hit me. I was reaching on the shelf for the grease gun, when something knocked me over. I think it must have been the 22. I didn’t know it was there. Examine my side. I feel faint. I thought it was an electric shock, at first. I saw some smoking rags, the end of the rifle sticking out.” The rifle in question was hammerless, was very easily discharged, was at once found in the garage on a shelf, under an aggregation of rags and tools, and with the muzzle angling outward and beyond the edge of the shelf. A rag, with a hole burned therein, was looped over the end of the barrel. A grease gun was present with the rags. There was no evidence tending to show suicidal purpose or predisposition to suicide. Selcl sufficient to establish the accidental discharge of the gun. .
    3INSURANCE: “Eyewitness” Requirement. An “eyewitness,'’ within the meaning of a policy which provides for non-liability in case of injury from the discharge of firearms unless the accidental character of the discharge he established by an “eyewitness” of the event other than the insured, is (a) one who, having been present at or near the scene of the injury,- testifies to the operating ean.se of the injury as then observed by him, or (h) one who, having been so present, testifies to the existence of an operating' cause, as then observed by him, to which the accident may fairly be attributed, and who testifies, in at least a general way, to the nature and working of such operating cause.
    PRINCIPLE APPLIED: See No. 2. Held, the accidental nature of the discharge of the gun was established by an “eyewitness.”
    
      Appeal from Polio District Court. — Thomas J. Gutiirie, Judge.
    June 27, 1918.
    Action at law, to recover upon a policy of accident insurance. There ivas a judgment for plaintiff, and defendant appeals.
    
    Affirmed.
    
      R. M. Haines, General Counsel, and Dunshee, Haines, & Brody, for appellant.
    
      Cwrr, Carr cG Evans, for appellee.
   Weaver, J.

It is conceded of record that the plaintiff’s intestate died March 14, 1916; that his death resulted from a gunshot wound, without any other concurring or contributing cause; and that, at the time of his death, he held a valid policy of accident ingurance in the defendant association. Suit being brought on the policy, the defendant ansAvered, denying liability on the theory that, although the death .of the insured is shown to have been caused solely by - external and violent means, proof of its accidental character is not established in the manner stipulated in the policy. It pleads that the deceased, in applying for membership in the association and for a policy of insurance therein, entered. into the following agreement:

“I hereby agree that I will accept the certificate of membership which may be issued to me, subject to all the provisions, conditions, and limitations contained in the articles of incorporation and by-laws of said association as the same now are or as they may be legally amended and changed; and I agree to comply with all the provisions thereof.”

The answer further alleges that, among the provisions of the articles and by-laws of the association to which the deceased thus subscribed, are the following:

“The right of any member or person, claiming by, through and under any certificate issued to any member to claim weekly benefits or indemnity from the association shall be fixed and established by the provisions of the articles of incorporation and of the by-laws in force at the time the accident occurred or sickness commenced out of which any claim arises.” Section 15 of Article V.
“The contract between the association and its members shall consist of the articles of incorporation and by-laws and the application.” Section 3 of Article I.
“This association shall not be liable for the payment of benefits or indemnity on account of disability or death resulting from a bodily injury caused by the discharge of firearms, unless the member, or person claiming by, through or under any certificate issued to such member, shall establish the accidental character of such discharge by the testimony of at least one person, other than the member, who was an eyewitness of the event; provided that the hoard of directors may waive this limitation when they are satisfied that said discharge was accidental.” Section 5 of Article XV.

The accidental character of Larson’s death is denied, and the sole contention of the defendant in the court below and in this court is that plaintiff has failed to establish that fact in the manner or by the testimony prescribed in Section 5, Article 4, last above quoted.

The testimony, in addition to the conceded facts already mentioned, is very brief. It tends to' show that deceased and his wife had been out in an automobile, which did not appear to be working well, and they came home about four o’clock in the afternoon. The wife went into the house, and deceased went to work on the car. A little later, deceased came in to dinner, after which he returned to the garage. Of what followed, the wife, testifying as a witness, says that, within two or three minutes after he went out, she heard him come rapidly into the kitchen; and as he entered, he called to her, “Come here, Nita, quick. I am hurt.” Going to him, she found him standing in the room. He was .dressed in his overalls, and had a monkey wrench in his hand. To her inquiry, “How are you hurt?” he said:

“I feel as if something hit me. I was reaching on the shelf for the grease gun, when something knocked me over. I'think it must have been the twenty-two. I didn’t know it was there.'”

Then, sitting down, he asked his wife to examine his side, and added that he was feeling faint. To the doctor, who soon arrived, he repeated his story, substantially as before. The wife, referring to the rifle, says it was a hammer-less gun, which she had herself often used, and that the trigger pull was extremely light. The safety device was operated by slipping it to the side, and it would “slip with the slightest touch.” In connection with the statement made by the injured man to the doctor, he said:

“I thought it was an electric shock, at first. It knocked me down. I got up, and saw some smoking rags or something of the sort; the end of the rifle sticking out.”

This witness also examined the situation at the garage, and says:

“There is shelving along the north wall, occupying the east portion of the north wall, in the northeast corner of the garage. We found a twenty-two rifle lying on one of the shelves. The butt end was against the east end of the shelf, and the rifle lying a.t an angle across the shelf. The muzzle stuck over the edge of the shelf two or three inches. The rifle was covered with some rags, and there was a tire pump lying on top of the gun, and some rags under the tire pump. There was a grease gun lying there, mixed up among the rags. The muzzle was sticking out, as you lookéd towards the shelves, and the wire plunger, with a loop for a handle, was in the debris on the shelf. These rags were apparently rags which had been used for wiping the car. There was a rag over the muzzle of the gun, with a hole burned through. The charred hole was two or three inches in diameter, and it allowed the rag to drop so that the muzzle of the gun stuck through the hole.”

One other Avitness gives practically the same description.

The only evidence offered on the part of defendant was the several provisions of the articles and by-laws of the association, and the concession by plaintiff that they were in force and effect at the time of the injury and death of the insured.

At the close of the evidence, both parties moved for a directed verdict. The defendant’s motion being overruled, its counsel said to the court, “That leaves nothing, I take it, but to direct a verdict for plaintiff;” and a ruling was entered accordingly. -From the judgment on the directed verdict, the defendant has appealed.

I. The first question presented is the construction of the contract of insurance, Avith special reference to the effect upon such contract of Section 5, Article 4, of appellant’s articles of incorporation, which section we have already quoted in full.

The appellant’s position is that the case before us is, in all essential respects, the parallel of Roeh v. Business Men’s Assn., 164 Iowa 199, and that the rule there approved and applied requires a reversal of the judgment entered in tbe trial court. We think, however, that there is a very clear and important distinction between the contract in the Roeh case and the one now to be considered. True, Section 5, Article 4, down to the beginning of the final clause, does follow the very language of the article in the Roeh case, but adds thereto the provision which we have italicized in the quotation, "provided that the hom~d of directors may waive this limitation when they are satisfied that sand discharge loas accidentalReading the entire article in connection with this final provision, it seems very clear that it was not intended to exempt the association from all liability for the death of a member from a gunshot wound where there is no eyewitness of the occurrence, but to limit such exemption to cases where the proof of the accidental character of the injury is not established by the evidence to the satisfaction of the directors. If this be not its meaning, what effect shall we give it ? It must be presumed that the proviso means something, and surely it is not to be dismissed as a mere reservation by the insurer of a right'to make the beneficiary of the policy a gift, if the board of directors shall be so charitably inclined. The language of the contract in this respect has been chosen by the insurer, and, under familiar principles, it is to be given the most favorable construction of which it is reasonably capable in support of the plaintiff's claim. It is well settled, also', that an insurer cannot constitute itself the final judge or arbiter of the merits of a claim made against it, by inserting in its policy a provision that any claim thereunder must be established by proof to its satisfaction. For example, in Braunstein v. Accidental Death Ins. Co., 1 B. & S. 782, an English case, the policy provided that, before payment of the indemnity, proof satisfactory to-' the board of directors of the accidental character of the injury must be furnished; and it was there held that this must be interpreted as meaning no more than that the proof must be reasonably satisfactory, and that the board could not deprive the plaintiff of his right to recover, by unreasonably refusing to be satisfied. See, also, Traiser v. Commercial Tran. E. Acc. Assn., 202 Mass. 292 (88 N. E. 901); Insurance Co. v. Rodel, 95 U. S. 232, 237; Buffalo L., T. & S. D. Co. v. K. T., etc., Assn., 126 N. Y. 450; Reynolds v. Equitable Acc. Assn., 59 Hun 13; Insurance Co. v. Bennett, 90 Tenn. 256; Noyes v. Commercial Trav. E. Acc. Assn., 190 Mass. 171 (76 N. E. 665). In the Boyes case, the Massachusetts court quoted the Braunstein case approvingly, and says:

“There is an implication that the directors will act reasonably, and the requirement is the same as if the words ‘acting reasonably’ were inserted, in connection with the words ‘said board.’ ”

Speaking upon the same subject, the court, in the Traiser case, after holding that, upon the proofs offered, the jury might find that the death ivas accidental, adds:

“If the jury should so find, we are of opinion they would have also the right to say the same fair preponderance of the evidence which had convinced their judgments ought to have produced the same conviction in the minds of other reasonable men. It would be an anomaly for us to decide otherwise. It cannot be said, as a matter of law, that reasonable'men were bound to come to only one conclusion. It is not for the defendant, in a case of contradictory evidence, finally and decisively to pass upon the rights of the insured, if such a condition as this has been reasonably complied with.”

In Buffalo, etc., v. Association, supra, it is said that a requirement of “satisfactory proof” entitled the association to demand that the fact “should be shown Avith reasonable definiteness and certainty.” The rule of these precedents is without exception in the cases, so far as avc have been able to discover. As suggested in the Traiser case, it would be contrary to all reason and all sound principle to hold it competent for an insurer in a contract to clothe himself with power or authority “to pass finally and decisively upon the rights of the insured.” The courts cannot thus be ousted of their jurisdiction to settle and adjudicate disputes involving rights of persons and property. Lewis v. Brotherhood, 194 Mass. 1; Utter v. Travelers’ Ins. Co., 65 Mich. 545; Fidelity & Cas. Co. v. Crays, 76 Minn. 450; Fidelity & Cas. Co. v. Eickoof, 63 Minn. 170.

II. Construing the contract as indicated in the preceding paragraph, we have, then, to inquire whether, upon the evidence produced, the jury could properly find that the accidental character of Larson’s death had been established by proofs which “ought to gatigfy reasonable men, acting reasonably.” This question must be answered in the affirmative. The entire res gestae developed by the testimony tends strongly to show that the gun was accidentally discharged. There is not only an entire absence of evidence tending to show suicidal purpose or predisposition on part of the deceased, but practically every circumstance shown is consistent with and gives support to the opposite conclusion. That he had been engaged in working about his car is shown by the testimony of his wife, by the condition of things in and about the garage immediately after his injury, and by the fact that he had clothed himself in his ovei*alls, or working suit. He had come into the house to his dinner; and, so far as appears, there was nothing in his conduct to excite the special notice or alarm of his wife. Dinner over, he returned to his work, but almost immediately, — in two or three minutes, the witness says, — he came back, in.a hurried manner, carrying a monkey wrench in his hand, and calling his wife to come quickly, for he was hurt. His explanation given at the moment is clearly admissible evidence, and, if true, indicates that, in reaching for or taking down the “grease gun,” with which to lubricate some part of the car, lie had moved the rifle lying upon the shelf, in such manner as to cause its discharge. His immediate and hurried return to the house, his prompt call for help from his wife and for medical aid, are quite inconsistent with an attempt at suicide. The fact that the rifle was found lying on the shelf or bench, with the muzzle angling outward, the delicate character of its trigger action, its being under a more or less confused aggregation of rags and implements used in caring for the car, and the further significant fact that the load appeared to have been discharged_ through a rag lying over its muzzle, all corroborate the story told by him as to the manner of his injury. That the proved facts and circumstances as a whole would justify a finding that the alleged accidental discharge of the gun was established to a reasonable certainty, and that the board of directors, as reasonable men, acting reasonably, should have so found, is scarcely open to doubt.

III. The foregoing considerations ar'e sufficient to require an affirmance of the judgment below, without entering into any discussion as to whether, if we were to ignore the effect of the last clause of Section 5, Article 4, of the defendant’s articles of incorpora-¿ion, such judgment could be sustained. It is perhaps proper, however, to point out that the opinion in Roeh v. Association, supra, does not hold that, to satisfy the provision for “eyewitnesses'” of the accident, some witness must be produced who actually saw the discharge of the gun which caused the injury. The rule or principle there approved is stated in these words:

“The event referred to. in the by-law relied upon is manifestly death resulting from a bodily injury caused by the discharge of firearms, and provides that the independent testimony should come from one who was an eyewitness of that event. * * * Not only is the beneficiary to prove the operating cause of death, as that it was from a gunshot wound, but lie must prove, by eyewitnesses of the event, that the gun was accidentally discharged. It is not enough that he prove that it might have been so committed. His proof must be stronger than that, and fairly preponderate in favor of the proposition that the gun was accidentally discharged. * * * In the ease at bar, the event, — that is to say, the accidental character of the discharge of firearms resulting in death, — must be established by at least one person other than the insured, and ‘who was an eyewitness’ does not necessarily mean that the witness should have seen the exact manner of the discharge; but it seems to us that it does comprehend the presence of the witness at or near the scene, and his direct observation of such facts and circumstances connected with the immediate transaction as, of themselves, and without any aid from presumption or inference arising from love of life, or the instincts of self-preservation, indicate that the shooting was accidental.”

Following this statement of the proposition, the opinion then quotes and adopts, as expressing the views of this court, an extract from Lewis v. Brotherhood Accident Co., 194 Mass. 1.

“An' eyewitness is a person who testifies to what he has seen. By the terms of this policy, the facts and circumstances of the accident and injury are to be established by those who saw them. Not only are the facts and circumstances of the injury to be established by an eyewitness, but also those of the accident; that is, the operating cause of the injury. Enough must be testified to by eyewitnesses to show the operating cause of the injury, or at least to show that, at the time of the injury, there was an operating cause to' which the accident may fairly be attributed, and to indicate in a general way the nature of that cause and the manner of its working.”

As will be readily seen, this statement of the rule is much less rigid and inflexible than the one contended for by appellant. Perhaps no better illustration is needed, than a statement of the facts in the Lewis case, in which the court announced the above rule, and permitted the plaintiff to recover upon a policy containing a requirement of an eyewitness of the event. One Lewis, being insured against accident, was drowned. The policy which he held contained a provision that, in case the insured died by drowning or by shooting, there could be no recovery again&t the. insurer except upon proof of the facts and circumstances of the accident and injury, bjr the testimony of an actual eyewitness. It was shown that Lewis and a young lady were seen on the river in a canoe which. Lewis was paddling. A little later, the empty canoe was found floating upon-the river, and the. dead bodies of Lewis and Ms companion were thereafter •found in the river. No one saw the canoe upset, or saw Lewis or the young lady struggling or alive in the water. In other words, there was no living eyewitness of the immediate facts of the drowning. There were, however, two witnesses who were on the river about five minutes before four o’clock in the afternoon of that day, and met Lewis and the lady going in the opposite direction. They appeared to be chatting and in good spirits, nothing unusual in their manner, or in the appearance or action of the canoe. One of these witnesses testified, also, that, three or four minutes after this meeting, and after a ¡joint of'land had intervened, shutting the canoe and its occupants from his Anew, he heard a cry or scream of some kind, but did not return to see what, if anything, was the matter. Another Avitness, with a friend, AAras on the river “about 4 o’clock” and, as they rounded a bend, they came upon the upturned canoe, and discovered articles of clothing floating on the surface. Close examination of the Avitness seems to have deA-eloped the time of this discovery to have been 10 or 15 minutes after four. The oaviier of the canoe testified that Lewis was a good boatman; that the canoe was what he would call medium safe; but that a person would have to he more careful with it than with a larger one. These facts, the court held, sufficiently satisfied the provision in the insurance contract requiring proof hy eyewitnesses. The views expressed on this point constitute an illuminating example of the practical application of the abstract rule or principle which that court elsewhere expresses, and which is approved by us in the Ilocfo case, and upon which the appellant largely relies. The opinion proceeds as follows:

“The jury might have found, on the evidence of actual eyewitnesses, that, shortly before the time when the accident happened, Lewis and Miss Hurley were upon the river in what might be called a ‘cranky canoe,’ liable to overturn at any moment, unless unusual care was exercised both by Lewis and his companion; that, within five (perhaps fewer) minutes of the time when they were last seen alive, the canoe was overturned, and the bodies were under water. Here, then, is shown, upon the testimony of eyewitnesses, an operating cause — namely, the imminent liability of the capsizing of the boat by reason of its cranky nature, taken in connection with the fact that it had two occupants, of whom one was a young woman, not shown to have been experienced in aiding to keep the canoe in balance. It is not the case of a boat which is of such size and construction as to be not liable to be upset by the movements of persons in it, but it is the case of a cranky canoe, having two persons in it, where a not unusual movement, even of one of them, may result in the capsizing of it. An operating cause for disaster is ever present under such circumstances, and that cause is disclosed by the testimony of ■ eyewitnesses. Moreover, upon the evidence the jury might have found that the movements of the canoe and its occupants were shown by eyewitnesses, up to a time within three or four minutes of the accident; and that every operating cause of the accident, except the one above shown to have been present, was fairly excluded by the testimony of these same eyewitn esses, it must be held that, in the case before us, the facts and circumstances of the accident and injury were established by eyewitnesses, within the meaning of the policy.”

In other words, if the eyewitnesses testify to personal observation of the “operating cause,” it is not required that they shall have seen that cause in actual operation.

If the rule and reasoning here made use of. by the Massachusetts court in the Leiois case, and adopted and approved by us in the Iioeh case, are sound, and we think they are, it seems hardly open to question that the judgment for plaintiff in the present case is fairly sustainable. If a “cranky canoe” is an ever-present cause of accident to those riding therein, is it not equally clear that a loaded gun, with very delicate trigger action, in a position where it may be disturbed by a careless or thoughtless movement, is an ever-present operating cause of peril to those who may be employed within its reach? And if the tracing of the movements of the occupants of the canoe may stop anywhere from 5 to 15 minutes short of the final catastrophe, and still the testimony be that of “eyewitnesses, within the meaning of the policy,” it will require very considerable ingenuity to find reason for saying, in this case, that the 2 or 8 minutes intervening between Larson’s leaving the house, and his hasty reappearance, exclaiming he was hurt, is such a break or hiatus in the history of the case by eyewitnesses as will defeat an action on the policy. To repeat once more the statement of the principle announced in the opinion from which we have quoted so extensively:

“Enough must be testified to by eyewitnesses to show the operating cause of the injury, or at least to dhow that, at the time of the injury, there was an 'operating cause to which the accident may fairly he attributed, and to indicate in a general way the nature of that cause and the manner of its working

The record in the case at bar fairly fills the measure of this requirement.

No reversible error is shown, and the judgment of the district court is — Affirmed.

Preston, O. J., Gaynor and Stevens, JJ., concur.  