
    Order of United Commercial Travelers of America v. Watkins.
    
      (Decided March 11, 1931.)
    
      Mr. E. W. Dillon and Messrs. Musser, Kimber & Huffman, for plaintiff in error.
    
      Messrs. Slabaugh, Seiberling, Huber <& Guinther, for defendant in error.
   Washburn, J.

Plaintiff in error, the Order of United Commercial Travelers of America, a fraternal order, issued to James D. Watkins an accident insurance policy, wherein it agreed to pay to Beulah Watkins, defendant in error, who is a sister of the insured, a certain amount if the insured came to his death “by violent, external and accidental means.”

In a clause in the policy containing many “exemptions,” it was provided that the order should not be liable “for any de.ath * * * or loss resulting from self-destruction while sane or insane” nor “for any death * * * resulting from voluntary exposure to unnecessary danger.”

It is conceded that the facts are such that said insurer is liable under said policy unless the death of the insured resulted from self-destruction while the insured was sane or insane, or from voluntary exposure to unnecessary danger.

Upon the trial, the beneficiary rested after offering evidence that the body of the insured was found upon railroad tracks at a street crossing, with the head nearly, and the legs entirely, severed from the remainder of the body. A motion was made for a directed verdict and overruled, and it is claimed that the court erred in overruling said motion.

If the court was in error in so ruling, that error was waived by the insurer’s proceeding with the trial; but we do not think that the court’s disposition of that motion was error. If, under the policy, the beneficiary was required, in order to make out a prima facie case, to offer evidence tending to prove that the death was accidental in the sense that it was not self-inflicted, we think that, at the close of the beneficiary’s case in chief, there was some evidence tending to prove that fact; from the facts proven, the inference arose that the death was accidental, because the circumstances indicated that it was not a natural death, and the jury by taking into account their experience of human affairs could have reasonably inferred from the circumstances shown that the death was not self-inflicted; indeed, if the defendant had rested its case at the conclusion of the evidence offered by the beneficiary, the court would have been justified in instructing the jury, and, if requested, would have been required to instruct them that there was a presumption against suicide; hence we are of the opinion that at the close of the beneficiary’s case in chief there was prima facie evidence of death by violent, external, and accidental means, and, in view of the stipulations of counsel and admissions in the pleadings as to other matters, a prima facie case of liability was established.

The insurer then offered evidence of eyewitnesses, who gave testimony tending to prove that the insured crawled under a very slowly moving freight train, and voluntarily exposed himself to an unnecessary danger, or that his death was the result of self-destruction; but, other than the fact that the insured was in poor health, there was no evidence indicating any reason or motive for committing suicide, and there was no evidence of declarations or .previous conduct of the insured indicating a suicidal intention or tendency.

In rebuttal the beneficiary offered evidence of a physician who had treated the insured for a period of about six weeks during the summer, and shortly before his death in October, who testified that he found the insured suffering from a very severe nervous breakdown; that he was scarcely able to maintain his balance, mentally; that “he seemed to be obsessed with a very grave form of fear complex” —feared bodily harm in traveling on trains, street cars, automobiles, and in crossing streets; that the medical treatment prescribed by the physician did not result in any improvement of the condition of the insured, and he therefore advised the insured to go to the Cuyahoga Falls Sanitarium to be cared for in a place especially equipped for his type of trouble.

The death occurred at a crossing near said sanitarium, and the fact that the insured was an inmate thereof is fairly inferable from the record.

The insurer’s motion for a directed verdict in its favor, made at the close of all the evidence, was overruled, and the court, at the request of the beneficiary, charged the jury before argument, as follows :

“1. I say to you, as a matter of law, that there is a presumption that no human being will destroy himself, and that you will indulge this presumption' unless the evidence before you, by a preponderance, shall indicate the contrary.
“2. I further say to you that there is a presumption in law that every person will exercise due care for his own safety, and that you shall indulge this presumption unless the evidence before you, by a preponderance, shall indicate the contrary.”

And at the request of the insurer the court charged the jury, before argument, as follows:

“3. The certificate of membership of the said J. I). Watkins in the defendant order, and which is the basis of this suit, provides, amongst other things, that ‘this order shall not be liable to any person for any benefits for any death, disability, or loss resulting from * * * self-destruction’ (while sane or insane), and I therefore say to you that if you find from all the facts and circumstances in this case that the death of said Watkins was from self-destruction when he was sane or insane, then plaintiff cannot recover, and your verdict should be for the defendant,.
“4. Iii this case the defendant will have the benefit of the presumption of sanity, because the law presumes that a man is sane until the contrary is shown by evidence sufficient to overcome the presumption. ’ ’

The court refused to charge requests Nos. 1 and 2, made by the insurer, which were as follows:

“1. If you find that J. D. Watkins met death when he voluntarily undertook to cross the railroad tracks by going under the cars of a moving freight train, then such death is not beneficially covered by the insurance contract entered into by him with the defendant, and plaintiff is not entitled to recover from defendant in this case, and your verdict should be for the defendant.
“2. If you find that the death of J. D. Watkins was an act of self-destruction, then plaintiff is not entitled to recover from the defendant on the insurance contract, regardless of the mental condition of said J. D. Watkins at the time of his 'death, and your verdict should then be for the defendant.”

In the general charge the court squarely placed the burden upon the beneficiary to prove, by a preponderance of the evidence, that the insured came to his death as a direct result of bodily injury, effected solely through external, violent, and accidental means, and that said death was not the result, of self-destruction while the insured was sane or insane, and also that said death was not the result of voluntary exposure to unnecessary danger, and told the jury that, if said death was caused by self-destruction while sane or insane, or by voluntary exposure to unnecessary danger, then the beneficiary could not recover.

The jury returned a verdict in favor of the beneficiary, and a motion for new trial being overruled, judgment was entered upon the verdict.

The two principal errors claimed are, that the verdict is manifestly against the weight of the evidence, and that the two instructions in writing, given before argument at the request of the beneficiary, as to presumption against suicide and against reckless exposure to risk, were out of place and erroneous.

As to said requests, the jurors were told that the presumptions referred to were to be indulged by them unless the evidence before them, by a preponderance, should indicate the contrary.

It is claimed that, as the burden was on the beneficiary to prove that the death was the result of an accident, she was necessarily required to prove that it was not the result of self-destruction, because that which is designed and expected by the person to whom it happens is not an accident, and that, therefore, No. 1 of said instructions placed the burden upon the insurer to prove that the insured committed suicide, when the burden was on the beneficiary to prove that the insured did not commit suicide.

Counsel for the beneficiary answer that claim by denying that the giving of said request placed the burden upon the insurer to prove suicide, claiming that said request has reference to the effect to be given to the presumption, regardless of who has the burden of proving suicide; that by said charge the jurors were simply told that, unless the evidence, when all of it was considered, preponderated in favor of that which was inconsistent with the presumption, then the presumption would prevail; that to so charge did not relieve the beneficiary from the burden of proving accidental death by a preponderance of the evidence as a condition of recovery; the claim being that, when the beneficiary proved facts consistent with either death by accident or by suicide, the presumption against suicide arose, and was sufficient to sustain the beneficiary’s burden of proving accidental death and to sustain recovery, unless the jury should find that the evidence preponderated in favor of the claim that death was the result of suicide.

There is force in the argument that by said request the court did not place upon the insurer the burden of proving that the death was the result of suicide (New York Life Ins. Co. v. Boiteaux, 4 Am. L. Rec., 1, 5 Dec. Rep., 242, fifth paragraph of syllabus) ; certain it is that the court did not explicitly and plainly so charge, and it is evident that the trial judge did not so regard the giving of said request, because in the general charge the court expressly and in plain and unmistakable language placed upon the beneficiary the burden of proving that said death was not self-inflicted, and, in view of all the judge said to the jury, we do not think it likely that the jury understood said special request to mean that the burden was on the insurer to prove suicide.

But, if the language of said request can be fairly construed to so charge, the insurer could not have been prejudiced thereby if the court would have been justified in plainly so charging, and, if the court would have been justified in so charging, the insurer could not have been prejudiced by the fact that in the general charge the burden of proving that the death was not the result of a suicide was placed upon the beneficiary; in other words, if the burden on the issue as to suicide was on the insurer, the fact that in the general charge the burden as to that issue was placed on the beneficiary could not have prejudiced the insurer.

On principle, we think that in a situation such as is presented by the record in this case the burden on the issue as to suicide should be on the insurer.

It is true that the word “accident” is used to denote an undesigned event, and in that sense a suicide would not be an accident; but the word is also used in a popular sense to denote an unusual or unnatural happening — one not according to the usual course of things.

In the description of the obligation of the insurer in the policy in this case the word “accidental” is used; if it is there used in the sense of an unforeseen event, which the insured had no agency in bringing upon himself, there was no occasion for a provision in the policy exempting the insurer from liability for death by suicide, and the fact that the policy contains such exemption indicates that the word ‘ ‘ accidental” was used in its popular sense and as not excepting suicide; to exempt is to release from an existing liability which would continue but for the exemption, and, therefore, following the established rule of strict construction against the insurer, by the terms of the policy suicide is made a defense; it was so pleaded in this case, and, under the facts as shown by the record, we see no good reason why the burden of proving it should not be upon the insurer.

It is a general rule that, where there is a general provision setting forth the obligation under a policy, and then a provision in the nature of an exception to such general provision, the plaintiff is not required to traverse such exception and prove the negative, but the duty is upon the defendant to plead such exception and prove facts necessary to bring the case within the exception. Allen v. Travelers Protective Assn. of America, 163 Iowa, 217, 143 N. W., 574, 48 L. R. A. (N. S.), 600; Mumaw v. Western & Southern Life Ins. Co., 97 Ohio St., 1, 119 N. E., 132; Coburn v. Travelers’ Ins. Co., 145 Mass., 226, 13 N. E., 604; North American Acc. Ins. Co. v. Gulick, 15 C. D., 395, 1 C. C. (N. S.), 477; Moody v. Ins. Co., 52 Ohio St., 12, 38 N. E., 1011, 26 L. R. A., 313, 49 Am. St. Rep., 699; Starr v. Ætna Ins. Co., 41 Wash., 199, 83 P., 113, 4 L. R. A. (N. S.), 636.

It should be remembered that when the beneficiary rested her case she had proven a death by external and violent means, which was accidental, unless within the exemption in the policy, and as to such exemption the facts were such as to give rise to a presumption in her favor.

The presumption against suicide is based upon a well-nigh universal human characteristic, and it arises in a case whenever the cause of death is in issue and the evidence discloses a state of facts consistent with either accident, in the sense of an undesigned event, or of suicide; and, when the evidence is such as to give rise to the presumption, the effect of the presumption is that the plaintiff must recover in the absence of evidence by the insurer which overcomes the presumption, and therefore in a case like this one, where the insurance covers death caused by external, violent, and accidental means, and it is provided in an exemption in the policy that the insurer shall not be liable for death resulting from self-destruction while sane or insane, and the insurer pleads such exemption as a defense, and the evidence is such as to give rise to the presumption that the death was accidental, it is not error for the court to charge that the burden of proving death by suicide is upon the insurer; to produce evidence merely to counterbalance such presumption is not sufficient to defeat recovery.

As we understand it, such in effect was the holding of the Supreme Court of the United States in a case which, so far as this question is concerned, was the same as the case at bar, and where the policy upon which suit was brought contained provisions' very similar, if not identical, with the policy involved in this case. Travelers’ Ins. Co. v. McGonhey, 127 U. S., 661, 8 S. Ct., 1360, 32 L. Ed., 308, and that case was followed in Standard L. & A. Ins. Co. v. Thornton, (C. C. A.), 100 F., 582, 49 L. R. A., 116.

“If the circumstances under which the insured came to his death are such that it may have resulted from suicide, and the insurer alleges that fact as a defense, the burden is on it to establish that fact, for the law presumes that the insured did not intentionally take his own life.” 14 Ruling Case Law, Section 416, page 1235. To the same effect also are Ætna Life Ins. Co. v. Taylor, 128 Ark., 155, 193 S. W., 540, Ann. Cas., 1918B, 1122; Sovereign Camp of W. O. W. v. Winn, 23 Ga. App., 760, 99 S. E., 319; Hanner, Admr., v. Ætna Life Ins. Co., 49 W. L. B., 140; affirmed, 69 Ohio St., 568, 70 N. E., 1114; Cronkhite v. Travelers Ins. Co., 75 Wis., 116, 43 N. W., 731, 17 Am. St. Rep., 184; Home Benefit Assn. v. Sargent, 142 U. S., 691, 12 S. Ct., 332, 35 L. Ed., 1160; Stevens v. Continental Casualty Co., 12 N. D., 463, 97 N. W., 862.

Ill 14 Ruling Case Law, 1235 and 1236, there are a very large number of cases cited in support of the above proposition, and we think it is sustained by the great weight of authority; hence, there was no prejudicial error in the court’s giving beneficiary’s request No. 1.

What has been said concerning special request No. 1 applies with equal force to special request No. 2, which relates to the claim of voluntary exposure to unnecessary danger, and as to which it was also the duty of the court to charge that the burden of proof was on the insurer.

We find.no prejudicial error in the court’s refusal to give No. 1 and No. 2 of the requests to charge, made by the insurer; No. 2 was fully covered by No. 3, which was given, and No. 1 made the case turn upon a single fact, and did not permit the jury to determine whether the insured voluntarily exposed himself to an unnecessary danger.

On the question of whether or not the verdict of the jury is manifestly against the weight of thje evidence, we do not regard it as profitable to comment upon the evidence. If any one of our number is not of the opinion that the verdict is manifestly against the weight of the evidence, we cannot reverse on that ground, and it is sufficient to say that we are not unanimously of the opinion that the verdict is manifestly against the weight of evidence.

We have examined the other claimed errors, and find no prejudicial error.

Judgment affirmed.

Pardee, P. J., and Punk, J., concur.  