Hooper v. Life Assurance Co.

I do not concur in the opinion of Mr. Justice REID.

The plaintiff contends that the trial court erred in the following respects:

1. Declining to submit to the jury the question of sanity of assured's assailant, on the theory that an insane person cannot commit intentional homicide and, therefore, the death may not have been a homicide, excluded by the contract, but, in legal contemplation, an accident.

2. Holding that the burden is upon plaintiff to negative homicide as the cause of assured's death and thus to prove that the exception in the contract as to homicide did not occur.

3. Holding that homicide, regardless of how perpetrated, is excluded by the provisions of the double indemnity contract of the policy.

1. There is not the slightest evidence of insanity of assured's assailant in the record, nor any from which an inference thereof might reasonably be drawn. Every person is presumed sane and the burden is upon the party asserting the contrary to establish insanity. Blackstone v. Standard Life Accident Ins. Co.,74 Mich. 592 (3 L.R.A. 486); Brunswick v. Standard Accident Ins.Co., 278 Mo. 154 (213 S.W. 45, 7 A.L.R. 1213); Scales v.National Life Accident Assurance Co. (Mo.), 212 S.W. 8. The trial court properly held that there was no question in this respect for submission to the jury.

2. To recover at all under the policy's double indemnity provisions covering accidental death, the plaintiff must sustain the burden of proving that assured came to his death by accidental means. See Dimmer v. Mutual Life Ins. Co.,287 Mich. 168, and cases therein cited. Assured's death was caused by three bullets shot into his head, any one of which would have caused instant death. No gun was found in his car. The car doors and windows apparently were closed when the car was first discovered and but one hole was found in the car, evidently caused by a bullet which had passed through assured's head. Footsteps were found in the snow leading away from the car, but none leading to it. These facts preclude the possibility that assured accidentally killed himself or was accidentally killed by a sane person who was either inside or outside the car. Viewed in the light most favorable to plaintiff, the evidence could in no wise sustain a finding or give rise to an inference of accidental death, except as we have recourse to the theory, employed by Mr. Justice REID, that the death was, as the facts so clearly indicate, a case of intentional homicide, which, if not provoked by the victim, is, insofar as he is concerned, to be deemed an accident. Furbush v. Maryland Casualty Co., 131 Mich. 234 (100 Am. St. Rep. 605). Regardless of where the burden of proof otherwise might have rested as to the occurrence or nonoccurrence of the exception — namely, homicide — the plaintiff thus was required to prove intentional homicide in order to establish the prerequisite to her right to recovery — namely, accidental death. Either she has not proved the latter and cannot recover, or she has proved intentional homicide, in which case we are left with the question of whether such homicide is or is not excluded by the terms of the policy.

3. The opinion of Mr. Justice REID holds that, as contended by plaintiff, the double indemnity provisions of the policy exclude homicide only when it results from certain specified causes, on the theory that not only the word "death" but also the word "homicide," as used in the policy, is modified by the words "resulting directly or indirectly from" and by so many of the 12 subsequently enumerated exceptions as their natures will admit. With such view I am not in accord. Justice REID'S opinion states that all 12 exceptions can and do modify the word "death," but concedes that by their very nature certain of them could not possibly modify the word "homicide;" and, of necessity, for it is difficult to imagine how assured's death by homicide could result from certain of the enumerated exceptions, such as his own physical disease, illness, infirmity or hemophilia. But there is no authority for the court to insert language into the contract to the effect that so many of the 12 exceptions modifying the word "death" as have natures which will admit of it shall also be deemed to modify the word "homicide;" and to do so would make the word "homicide" utterly superfluous and meaningless, inasmuch as every situation contemplated by the 12 exceptions is covered by applying the language thereof to the word "death" alone. To give the word "homicide" any meaning in the contract at all, it must be deemed to have added an exclusion beyond that of death resulting from any of the 12 enumerated exceptions. It is neither the province of the court to strike a word from a contract or render it meaningless, nor to incorporate new language into the contract, nor even to attempt a strained construction against the interests of the insurance company merely because the company prepared the policy, when the meaning of the language in the contract as written is clear, certain, unambiguous and capable of being given full effect.

It is my opinion that the trial court was correct in holding that, under the language of the double indemnity provisions of the policy, the defendant is not required to pay double indemnity in cases where the death of the assured results from homicide.

The judgment should be affirmed, with costs to defendant.

BUTZEL, and BUSHNELL, JJ., concurred with DETHMERS, J.