The Employers' Liability Assurance Corp. v. Anderson

1' 5otup?eju«eeed,se misstatements in proof not conclusive. Gilkeson, P. J. The plaintiff in error contends that, as they disclose the fact that Anderson was murdered, the first proofs of loss show no liability under the policy ; and that those proofs are conclusive, and the defendant in error is estopped from denying the truth of the statements therein contained, unless there is a showing made of mistake in making the proofs or of the discovery of new facts brought to light since the proofs were made. Conceding that the plaintiff’s affidavit, which constituted part of the proofs in question, is as strong as it is claimed to be, we still do not think it bars her recovery when an entirely different state of facts has been shown. It has been held that misstatements in , . _ _ „ proofs are conclusive evidence of the tacts -1-therein stated; but we think the rule is as laid down in Cook on Life Insurance, p. 218 : “It has been held that they [misstatements] are [23] conclusive evidence of sucli facts, as against the claimant, unless before the trial he has furnished the insurer a corrected statement; but the tendency of more recent decisions has been to relax the strictness of this rule, and the better opinion would seem to be that the rule applies only to where the insurer has been prejudiced in his defense by relying on the statements contained in the proofs.” Again, in May on Insurance, 3d ed., § 465, it is said : “Although the statements in them [the proofs] will be taken against the insured as admissions against interest, he may show that the statements themselves were without foundation, and inadvertently made.” We cannot see how the plaintiff in error'was prejudiced by the statements in the first proofs. It admits, in its correspondence with the plaintiff’s attorney, that it “had inspected the spot, and made inquiries in the neighborhood ; ” and it was shown that its attorney and surgeon were at the inquest; that it received other proofs before the trial and examined them ; and that, upon its information, its opinion was in accordance with that expressed in the verdict of the coroner’s jury; and for these reasons, not on account of any statements made in the proofs, it denied liability. Then, the affidavit of Mrs. Anderson, when taken in connection with the other portions of these proofs, shows conclusively, we think, that it was made on the faith of the result of the inquest, not from actual knowledge. See Bachmeyer v. Association, 82 Wis. 255 ; 52 N. W. Rep. 100 ; affirmed, 87 Wis. 325 ; 58 N. W. Rep. 399. . [24] 2. Misstatements no bar to action. [23] “If the proofs also disclose facts of which the defendant could avail itself as a defense to an action on the policy, this would not derogate from the sufficiency [24] of the proofs as proofs of death. But, whxlst the disclosure of such facts might suggest to the company the propriety of refusing payment and standing a suit, it would be no bar to the bringing of a suit. Otherwise, no suit could ever be brought until the parties had gone through an extrajudicial investigation, resulting favorably to the assured.” Insurance Co. v. Rodel, 95 U. S. 237. We think the testimony also shows that the first proof was inadvertently made. The company did not show that this case came within this exception, and we think the burden of proof as to this is upon it. That this death was the result of a pure accident, we think is clearly established, and with sufficient positiveness to' overcome the prima facie case made by the first proof, if any such case was made. Among the reasons for so thinking is the admission of the plaintiff in error as to the facts in this case : “ It is simply and solely a case where a man is walking along a highway, or standing upon it, and, without any known or explainable cause, falls headlong into a hole or gully.” The next proposition urged in the brief of the plaintiff in error is : “ The court erred in refusing to submit to the jury the question as to whether or not the insured met his death, occasioned directly or indirectly, or while engaged in a voluntary exposure to unnecessary danger.” The jury found, with reference to this, that it was about ten o’clock at night when the insured started to Kansas City; that his wife, regarding the trip as dangerous, tried to dissuade him ; that it was dangerous, and that he knew it was ; that he went voluntarily ; that it was necessary for him to go, and that he took a razor with him for self-defense. While these findings are apparently inconsistent, [25] we think they can be reconciled, and, taken with the other findings in the case, do not show or find that the death of Anderson was caused directly or indirectly while engaged in a voluntary exposure to unnecessary danger. The plaintiff in error lays great stress upon the fact that the deceased took with him a razor for self-defense, thereby admitting that he knew the trip was dangerous ; but, under the facts of this case and the findings of the jury, does this make any difference? We think not. The danger admitted by these acts was of a specific kind ; that it was dangerous by reason of meeting with personal encounters — not that it was dangerous on account of the condition of the roads or streets — and his razor was taken as a precaution against this danger. If the jury had found that he came to his death by reason of injuries occasioned by the violence of others, or from any kindred cause, this would be a strong circumstance against plaintiff’s recovery; but the jury did not so find. On the contrary, the findings are that he came to his death from an entirely different cause; and there is not one particle of testimony to show that the trip was in fact dangerous, or that it was considered dangerous by anyone, or in what respect it was dangerous, except- the request of his wife that he would not go on account of her fears or belief, and the act of the deceased in taking a razor. 3. Danger must have causative connection witli injury. We think, to avoid a policy for this reason, there must be an unnecessary risk taken of some known danger, and this known danger must, of itself, be the actual cause of the death or injury. “It is not enough to defeat liability to show that the assured violated the conditions of the policy in these respects, but it must also be shown that such violation had a causative connection with the injury.’’ [26] Jones v. U. S. Mut. Acc. Ass’n, 92 Iowa, 652 ; 61 N. W. Rep. 485 ; Bradley v. Insurance Co., 45 N. Y. 422 ; Bloom v. Insurance Co., 97 Ind. 478 ; Griffin v. Association, 20 Neb. 620 ; Murray v. Insurance Co., 96 N. Y. 614 ; Insurance Co. v. Burnett, 90 Term. 256 ; 16 S. W. Rep. 723; Mfg.Acc. Indem. Co. v. Dorgan, 7 C. C. App. 581 ; Eq. A. I. Co. v. Osborn, 90 Ala. 201; 9 So. Rep. 860; Miller v. Am. Mut. A. I. Co., 92 Term. 167 ; 21 S. W. Rep. 43 ; Collins v. Bankers A. I. Co., 64 N. W. Rep. 778 ; DeLoy v. Insurance Co., 171 Pa. St. 1; 32 Atl. Rep. 1108. The hypothetical question put to Dr. C. L. Burk may be objectionable, but it is not sufficiently so to cause a reversal of this case. It is claimed that the court erred in refusing certain instructions ; 6ut we think the court fully and ably declared the law in this case in the instructions given. One other proposition we will consider. It is, that the last proof of loss was not received within the seven months. This has not been urged with much force. The theory upon which the trial proceeded in the court below totally ignored it as a defense. We think, however, that the court was justified in giving the instruction it did with reference thereto. The correspondence with the company shows absolutely that it did not deem it a defense. In the other objections urged we see no error. The judgment will be affirmed.