Summary
In Hrybar v. Metropolitan Life Ins. Co., 140 Ohio St. 437, 45 N.E.2d 114, a general verdict was returned for the plaintiff in an action on a similar insurance policy.
Summary of this case from Carson v. Met. Life Ins. Co.Opinion
No. 29104
Decided November 25, 1942.
Insurance — Life — Increased payment for death by violent and accidental means — Burden remains upon beneficiary to prove death by accidental means — Presumption of accidental death raised and prima facie case made, when — Presumption rebuttable and disappears, when — Question for jury arises, when — Charge to jury upon burden of proof — Error to charge that burden as to self-destruction upon insurer.
1. In an action for recovery under a clause in a life insurance policy providing for the payment of an increased amount if "the death of the insured resulted, independently of all other causes, from bodily injuries caused solely by external, violent and accidental means," the burden rests upon plaintiff-beneficiary throughout the trial to prove death by accidental means.
2. Upon a showing of death by external and violent means, under circumstances not wholly inconsistent with accident, the law raises a presumption of accidental death, and upon such showing, aided by the presumption, a prima facie case is made.
3. Such presumption is a rebuttable one and disappears upon the production of evidence to the contrary.
4. Where, under the evidence, reasonable minds may arrive at different conclusions as to whether death was by accidental means or suicidal, a jury question arises.
5. In an action upon an accidental death clause of a life insurance policy, a charge that the burden of proof as to self-destruction is upon the insurer, constitutes reversible error.
APPEAL from the Court of Appeals of Stark county.
During the afternoon of September 25, 1940, Frank Ceglar, often called Frank Brick, a man 52 years of age, experienced sudden and violent death at the roundhouse of the Wheeling Lake Erie Railway Company in Brewster, Ohio, where he was an employee.
He was named as the insured in three subsisting and effective whole life industrial insurance policies issued by the Metropolitan Life Insurance Company. One of the policies was in the face amount of $380, another was in the face amount of $350 and the third was in the face amount of $140. Each required the payment of a weekly premuim.
Mary Hrybar, denoted as a sister but who was in fact a cousin of the insured, was designated beneficiary in all of the policies.
Subsequent to Ceglar's death the company paid Mrs. Hrybar the face amounts of the policies as the extent of its liability. She then brought an action in the Court of Common Pleas of Stark county for additional death benefits, under a clause common to all of the policies, the pertinent part of which reads:
"Upon receipt of due proof that the death of the insured resulted, independently of all other causes, from bodily injuries caused solely by external, violent, and accidental means, the company will pay, as an additional death benefit, an amount equal to the amount payable under the schedule * * *. The additional benefit shall not be payable if the insured's death * * * ( b) is the result of self-destruction, whether sane or insane * * *."
The petition alleged that the death of the insured was caused solely by external, violent and accidental means, within the terms of the policies, and that the company refused, upon demand, to pay the additional benefits provided.
Set up as the principal defense of the answer was the allegation that the death of the insured was not accidental, but resulted from the insured's own act of self-destruction, and that by reason thereof no additional amounts were due the beneficiary.
To this a reply was filed, in the form of a general denial.
There is no serious dispute in the facts. Upon trial, the evidence disclosed that the insured, a native of the European country of Yugoslavia, had been employed by the Wheeling Lake Erie Railway Company for a period of 25 years. He owned a house in Brewster occupied by himself, the plaintiff and her family. At the time of his decease and for some time prior thereto, he had held a position known as hostler's helper at the Brewster roundhouse of the railway company. Among the usual duties of the helper are to "spot" the turntable to accommodate a locomotive about to be moved out of the roundhouse, give a signal to the hostler to back the locomotive onto the turntable and afterward to provide the locomotive with water, coal and sand as needed. During the initial processes, the position of the helper is on the right side of the locomotive about to be backed, in view of the hostler. On occasion, he might go to the left of the locomotive to warn and protect employees at work there.
The fatality involved occurred between 2:30 and 3:00 o'clock p. m. According to the testimony of the hostler, the insured, standing to his right, gave him the signal to back the engine. Shortly thereafter, the decapitated and twitching body of the insured was observed lying near the turntable to the left of the locomotive. Blood was visible on the second and third wheels of the left front truck of the tender. Nobody saw the actual happening.
One witness testified that ten days or two weeks before the insured's death he was not as talkative as usual, was somewhat sullen about his work and seemed worried. He said that he had been required to register as an alien and thought he might be deported. Several other witnesses stated that up to the time of his death the insured was perfectly normal in every respect and gave no indications of any mental disturbance or concern.
At the request of the plaintiff, the trial judge gave the following special instructions before argument:
"If you find from the preponderance of the evidence that the proof concerning the death of Frank Ceglar is conflicting or not inconsistent with accident, the law presumes an accidental death, and the burden of proof in its secondary sense, that is to say, to show that it is other than an accidental death, is cast on the defendant, the Metropolitan Life Insurance Company, and this it is required to prove by the preponderance of the evidence.
"If you find from the fair preponderance of the evidence that the defendant, the Metropolitan Life Insurance Company, has failed to prove that decedent's death was a suicide or was other than an accidental death, then I will say to you that you are to return a verdict for the plaintiff * * *.
"I will say to you further that you cannot guess or speculate that decedent's death was a suicide, or that his death is a possible suicide, for this defense must be proven by the greater weight of the evidence and must be such evidence as to overcome the presumption of accidental death."
He also advised the jury in his general charge as follows:
"Of course the general burden in all cases is upon the plaintiff to show that he was insured and show also the death under certain circumstances, indicating accidental death, and from then on as to the question of whether or not it was suicide, the burden then, as the court has already told you, is upon the defendant to show that it was as a matter of fact suicide, because it is an affirmative defense, an exception in the general conditions of the policy — rather an exception to the policy which according to the holdings of our courts places the burden of proving that fact upon the defendant.
"That simply means, when you come to that question that it is up to the defendant to prove that this man. came to his death by self-destruction, or at least not accidentally."
A general verdict was returned in favor of the plaintiff-beneficiary for the full amount asked, and judgment was rendered thereon.
On appeal, the Court of Appeals not only took the position that the charge on the burden of proof as to self-destruction was erroneous, but that the defendant's motions for an instructed verdict should have been sustained. Consequently, final judgment was entered for the defendant.
Plaintiff's motion for an order directing certification having been allowed, the cause is now here on its merits.
Mr. John F. Locke, for appellant.
Messrs. Rodgers Wendling, for appellee.
In our view, there are two questions for consideration in this case: (1) Does the controversy present a jury question, and (2) Were the instructions submitted by the trial court free from prejudicial error?
There can be no dissent from the proposition that in an action on a clause in a life insurance policy providing for the payment of an increased amount in case of death by external, violent and accidental means, the burden is on the plaintiff-beneficiary to establish a prima facie case of death by accidental means before recovery may be allowed.
Recently, in the case of Hassay v. Metropolitan Life Ins. Co., ante, 226, 43 N.E.2d 229 (where suicide was not involved), we had occasion to lay down the following rules in the syllabus:
"1. In an action to recover under a clause in a life insurance policy providing for the payment of an increased amount 'if death occur in consequence of bodily injury effected solely through external, violent and accidental mean, * * * independently and exclusively of all other causes,' (1) the burden rests upon the plaintiff-beneficiary to prove by a preponderance of the evidence that death was caused exclusively by external, violent and accidental means; (2) upon a showing of death by external and violent means, the law raises a presumption that death was accidental and, upon such showing aided by the presumption, a prima facie case for plaintiff is made; and (3) the presumption remains until overcome by evidence to the contrary.
"2. Such presumption of death by accidental means is a rebuttable one and disappears upon the production of evidence to the contrary."
The presumption of death by accident accorded the plaintiff is grounded on the instinct of self-preservation and the love of life which is a predominant trait of human nature.
Applying the rules of the Hassay case to the instant litigation, where a sudden and violent death was shown under conditions not wholly inconsistent with accident, it is our opinion that plaintiff made out a prima facie case.
So far as the evidence discloses, the insured was an average workingman with no impelling motive for taking his own life.
From the fact that insured left a place of safety to the right of the locomotive, went to the left side and was there decapitated beneath the wheels of the tender, the defendant insists that the situation presents a clear case of suicide.
However, the presumption of accidental death " 'is not displaced by proof of circumstances which merely tend in a greater or less degree to show suicide, but in such case it is a question for the jury whether they overturn the presumption.' " Mitchell v. Industrial Commission, 135 Ohio St. 110, 114, 19 N.E.2d 769, 771, quoting from Provident Life Accident Ins. Co. v. Prieto, 169 Tenn. 124, 83 S.W.2d 251, 267.
In a case like the pending one then, where reasonable minds might arrive at different conclusions as to whether death was accidental or suicidal, a jury question arises. Hassay v. Metropolitan Life Ins. Co., supra.
Was the burden of proof as to self-destruction correctly placed on the defendant? The present action is not one to recover a death indemnity under an ordinary life insurance policy, containing exceptions to liability, where proof of death alone imposes upon the insurer the burden of sustaining the pleaded exceptions ( Schultz v. Ins. Co., 40 Ohio St. 217, 48 Am. Rep., 676), but is one upon the increased indemnity provision of a life policy, where the burden of showing death by accidental means rests upon the plaintiff. Well-considered cases recognize the distinction. Thus, in Travelers' Ins. Co. v. Wilkes (C.C.A. 5), 76 F.2d 701, 705, the court said:
"We also think the charge touching the burden of proof was confusing. The court correctly told the jury that the burden was upon the plaintiff to show that the death was directly and independently of all other causes the result of accidental means, and that the burden of establishing an accidental death was upon her * * * and over exceptions taken, the jury were told that the defense of suicide was an affirmative defense and the burden of establishing it by a preponderance of the evidence was upon the defendant. The latter charge would be correct in a suit upon the usual life policy containing an exception of death by suicide, for then the plaintiff need prove only death; the insurer having to plead and prove the exception. But this policy promises payment not for death, but for death by accident. * * * The denial that the death was accidental was a sufficient plea. The additional plea that it was suicide, though more specific, really added no defensive merit. It was not the setting up of an exception from the policy but a denial that the death was of the sort insured against. The burden of proof remained on the plaintiff. * * * the presumption against suicide * * * does not regulate nor change the burden of proof, but it is an evidentiary presumption which may aid a lack of evidence but cannot prevail against the evidence. Where the evidence makes it proper, a jury may be instructed how to use this presumption, but it ought not to be confused with the burden of proof under the pleadings. Appellate courts, in discussing the sufficiency of evidence to show accidental death, have sometimes spoken of the presumption as shifting the burden of proof, but such language is not accurate." Compare, Dimmer v. Mutual Life Ins. Co. of New York, 287 Mich. 168, 283 N.W. 16; Warren v. Pilot Life Ins. Co., 215 N.C. 402, 2 S.E.2d 17; Metropolitan Life Ins. Co. v. Rosier, 189 Okla. 448, 117 P.2d 793.
Consequently, in our opinion the trial court committed prejudicial error in charging as it did on the burden of proof as to self-destruction. However, the Court of Appeals was wrong in entering final judgment for the defendant, and in this respect a reversal is in order. The cause is remanded to the Court of Common Pleas for further proceedings.
Judgment reversed.
WEYGANDT, C.J., TURNER, WILLIAMS, MATTHIAS and HART, JJ., concur.