Opinion
Decided June 27, 1932.
Insurance — Accident — Burden on insurer to prove exception clause applicable — Injuries intentionally inflicted upon insured by another person, not covered — Insured lost eye in encounter with robber — Charge to jury, erroneous — Repeated reiteration to find for insured if eye loss accidental — Error in charge waived by failure to object.
1. Burden was on accident insurer to prove that loss of eye resulted from injuries intentionally inflicted within policy exception.
2. Evidence held not to sustain judgment that insured's loss of eye did not result from injuries intentionally inflicted by would-be robber.
3. Repeated reiteration of instruction to find for insured if loss of eye was accidental held improper.
4. Plaintiff in error cannot complain of instruction, where no objection was made or exception taken in trial court.
ERROR: Court of Appeals for Lucas county.
Mr. Frazier Reams, for plaintiff in error.
Mr. Frank J. Szumigala, for defendant in error.
On September 22, 1930, the plaintiff in error, The National Life Accident Insurance Company, issued a policy of insurance to the defendant in error, James Kelly, insuring him against loss of life, limb, or sight from accidental injury, the sum payable thereunder for loss of sight of one eye being $500.
Section C of the policy reads in part as follows: "This policy does not cover * * * (2) any loss resulting from injuries intentionally inflicted upon the Insured by himself or by any other person."
Claiming to have lost an eye by accidental injury, Kelly commenced an action in the municipal court of Toledo to recover therefor the stipulated sum of $500. He recovered a judgment thereon for this amount, and upon appeal therefrom by the insurance company the action was tried de novo in the court of common pleas, where Kelly again recovered judgment for the amount claimed. As stated by the trial judge to the jury, the burden of proof rested upon the insurance company to prove facts which made applicable the above-quoted exception contained in the policy and pleaded in its answer. United States Mutual Accident Assn. v. Hubbell, 56 Ohio St. 516, 526, 47 N.E. 544, 40 L.R.A., 453; Allen, Trustee, v. Travelers Protective Assn. of America, 163 Iowa 217, 143 N.W. 574, 48 L.R.A. (N.S.), 600. The insurance company claims that the verdict and judgment are manifestly against the weight of the evidence and that the trial court erred in his charge to the jury, and upon these grounds asks the court to reverse the judgment.
The evidence shows that, as Kelly came out of a house on Hamilton street, in Toledo, a man, Jim Cooley by name, attempted to stop him with the seeming object of committing a robbery. There is a conflict in the evidence as to just what occurred, but that Kelly lost an eye is not in dispute. Whether Cooley committed an assault and battery upon Kelly which caused the loss of the eye, or whether in trying to escape from Cooley, Kelly fell against some object and thereby sustained his disability, is in dispute. The members of this court unanimously agree that the verdict and judgment returned and rendered in the trial court are manifestly against the weight of the evidence.
The charge of the trial judge to the jury was commendably short, but this very fact made it essential that no particular statement as to fact or law should, by repetition, have been unduly emphasized. Assuming that the members of a jury possess average intelligence, and the ability to understand what is said, it should be sufficient to once state a proposition, whether of law or fact. In the charge in question, the jurors were seven times told in substance and effect that, so far as Kelly was concerned, the loss of his eye was accidental, which we think was laying undue stress upon this particular fact, and probably tended to lead the jury to think that the court favored a verdict in favor of the injured Kelly. The foregoing statement to the jury was further emphasized by the following instruction:
"Now, I say to you, ladies and gentlemen of the jury, that if this robber intended to hold this man up and rob him, take his money away from him, but did not intend in that robbery to do him bodily harm, and in some way this cut was made by the robber unintentionally, although he was in the act of robbing, if at that time he did not intend to do him bodily harm, then, ladies and gentlemen, the plaintiff is entitled to recover because it was unintentional both on his part and on the part of the robber.
"If that was done accidentally, and done unintentionally by the robber, then I say to you, ladies and gentlemen of the jury, that your verdict will still be for the plaintiff."
As to the above-quoted portion of the charge it is contended that it is erroneous, in that in effect it left the jurors to guess at the mental purpose of Cooley by failing to tell them that his intent was to be determined from what, if anything, he did and said, and that a person is presumed to intend the natural and probable consequences of his voluntary and deliberate acts, but no request was made of the trial judge to amplify or qualify any part of his instructions to the jury, and, since it would be opinion rather than decision, we refrain from further comment thereon.
Because the verdict and judgment are manifestly against the weight of the evidence, the judgment of the court of common pleas is reversed, and the cause remanded to that court for a new trial.
Judgment reversed and cause remanded.
RICHARDS and WILLIAMS, JJ., concur.