Allison v. Bankers Life Co. ( 1941 )

I am unable to agree with the majority opinion herein and respectfully dissent.

Division I of the opinion recognizes that the burden of proof on the issue of accidental death was upon appellee. Division II recognizes that, in determining whether the death was accidental, the decisive question is the intent of the decedent; if the inhalation of carbon monoxide gas was unintentional, it was accidental, if purposely or intentionally inhaled, death was suicidal. Division III recognizes that, on the vital question of intent, the evidence is circumstantial. The question then is, was the circumstantial evidence sufficient to warrant submission of the issue to the jury.

Appellant cites the case of Asbach v. Chicago, B. Q. Ry. Co.,74 Iowa 248, 250, 37 N.W. 182, 183, wherein we state:

"A theory cannot be said to be established by circumstantial evidence, even in a civil action, unless the facts relied upon are of such a nature, and are so related to each other, that it is the only conclusion that can fairly or reasonably be drawn from them. It is not sufficient that they be consistent, merely, with that theory, for that may be true, and yet they may have no tendency to prove the theory. This is the well-settled rule, and it is manifest that under it plaintiff's theory is not established. The facts relied upon to prove it are quite as consistent with the theory that the animal went upon the bridge of his own volition, or that he was frightened by something else than a train, and ran upon it, as with it. Plaintiff, then, has not shown the cause of the injury."

The foregoing pronouncement of this court has been cited with approval and followed by this court a great many times. As I see it, our question is twofold. First, does the circumstantial evidence herein meet the requirements of this rule? And second, if it does not, has the court pronounced a different rule?

The evidence is undisputed that the body was found in a secluded spot, lying to the rear of the automobile with the head from 18 to 36 inches from the exhaust pipe of the automobile. The switch was on, the gasoline tank empty, the battery dead, the hand throttle and choke pulled out, the water in the radiator boiled out. There is no evidence that would dispute the inescapable inference that the deceased left the motor running with the hand throttle and choke pulled out and that it continued to run until the battery was dead, the gas tank empty, and the radiator dry. The evidence is entirely consistent with the theory that the deceased intentionally placed himself within the range of the carbon monoxide gas, which accomplished his death.

We have recognized that absence of proof as to the motive for suicide does not prevent a finding of suicide. Inghram v. National Union, 103 Iowa 395, 402, 72 N.W. 559. We have expressly recognized that the presumption against suicide is not sufficient to overcome circumstantial evidence of suicide. Gavin v. Des Moines Life Ins. Co., 149 Iowa 152, 157, 126 N.W. 906; Warner v. Equitable Life Ins. Co., 219 Iowa 916, 920, 258 N.W. 75.

The circumstances upon which appellee relies herein are a stipulation that death was due to inhalation of carbon monoxide gas, the presumption against suicide and evidence which would tend to negative a motive for suicide. As opposed to these circumstances, appellant has introduced substantial evidence that the inhalation of gas was intentional. Granting that the evidence is consistent with both theories, the question for this court to determine is, did the party having the burden of proof produce circumstantial evidence of the quantum that would permit the jury to say that accidental death was the only conclusion that can fairly or reasonably be drawn from such circumstances or, to put it otherwise, is the fact of suicide equally consistent with the proved and admitted facts?

I am disposed to the view that the location of the burden of proof in this case is decisive. I agree with the majority that, were this a case where the burden of proof was on the defendant insurance company, a jury question would have been presented. My reason for so believing is that the circumstances were not sufficient to negative the theory of accidental death. Where I disagree with the majority is on the effect that must be given to the fact that here the burden of proof was on the plaintiff-appellee. It was her responsibility to negative the possibility of suicide. This, in my judgment, she failed to do. I would reverse.

STIGER and WENNERSTRUM, JJ., concur in this dissent.