Jenkin v. Pacific Mutual Life Insurance Co.

GRAY, C.

On the trial of this case, before the court without a jury, the judgment was for defendant and the plaintiff brings this appeal from an order denying his motion for a new trial.

This action is brought by the assignee of the beneficiary of an accident policy issued by defendant to George Douglas Atcherly Crosbie in the lifetime of said Crosbie. By the terms of the policy the sum of ten thousand dollars was to be paid to Mrs. Annie Mercer George (grandmother), “after due notice and satisfactory proof that the insured has, during the continuance of this policy, sustained such violent and accidental injuries as shall externally be visible upon his person, and which alone shall have caused his death within ninety days from the time of the happening of such accident.” The agreement under which the policy issued provides that the insurance shall not cover death resulting from “intentional injuries inflicted by the insured or any other person”; also that “the claimant shall establish affirmatively under any claim or proceeding thereunder that the injury or death resulted from actual accident according to the policy.”

In the specification of particulars in which the evidence is insufficient to support the findings appellant attacks the following finding of the court: “The said George D. A. Crosbie did not, prior to his death, or at the time thereof, receive any accidental injury, and did not die of accidental injury.” In his brief, also, appellant’s principal contention is directed against this finding.

The evidence without conflict shows that the insured died of a gunshot wound some two days after the same was inflicted; that a bullet entered his body from the front between the sixth and seventh ribs, or thereabouts, wounding the pleura and lung. The manner in which the wound was inflicted does not appear from the evidence, except as it may be inferred from the nature and location of said wound. Ko person is shown to have been present with the insured at the time he received the mortal injury; and his statements to the physician 'and others as to how (he came to be wounded were, properly we think, stricken out

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by the court on motion of defendant. Some testimony was elicited on behalf of the defendant to the effect that, an indefinite number of days before he was shot, insured had made several declarations tending to show that he contemplated suicide. As against the beneficiary and her assignee these declarations, not accompanying nor explanatory of any act, were not competent evidence, and the court erred in refusing to strike them out on motion of plaintiff.