LyoN, C. J.
I. It is maintained on behalf of plaintiff that the judgment should be affirmed, and on behalf of defendant that it should be reversed, on the ground of estop-pel. These conflicting claims will, first be considered and disposed of.
1. It is argued for plaintiff that by calling for further proofs of the identity of “Maria” with “Marie” Bach-meyer, and putting the plaintiff to trouble and expense to supply such proofs after the- defendant was informed that [260]*260the insured died by his own hand while insane, and hence after it knew the facts which released it from liability on the policy, except for the assessments paid thereon, which it had already more than refunded, the defendant is es-topped to deny its liability on the policy for the whole amount of the insurance. This is an attempted application to this case of the rule laid down in Bigelow, Estoppel, 578, and adopted in Webster v. Phœnix Ins. Co. 36 Wis. 67, and in' many other cases in this court and elsewhere, to the .effect that “ a party cannot occupy inconsistent positions; and, where one has an election between inconsistent causes of action, he will be confined to that which he first adopts. Any decisive act of the party, done with knowledge of his rights and of the facts, determines his election and works an estoppel.” The rule is not applicable here for two reasons : (1) The defendant was entitled to know whether it had made the advance payment on the. policy to the proper beneficiary or to a stranger; (2) the by-laws of defendant authorized its board of directors or executive committee to make further payments on the policy, even to the full amount of the insurance, in their discretion, although the defendant was legally liable only for assessments paid upon the policy and interest. The defendant was entitled to be informed of the identity of the beneficiary in the policy with reference to making such further advances, should its authorized officers elect to do so. The defendant might properly- require the identification of the beneficiary for either of the above purposes, without becoming thereby es-topped to assert that it is not liable on the policy for the whole amount of insurance written therein.
2. The defendant maintains that the plaintiff is estopped to claim the insurance because, in her proofs of the death of her husband, she deposed that he committed suicide while insane, by which sworn statement it is claimed she is bound. This court has held in several cases that an honest [261]*261or unintentional mistake in the proofs of loss under a fire policy will not necessarily prevent a recovery tbereon, even though notice of the error is not given the insurers until the trial. Parker v. Amazon Ins. Co. 34 Wis. 363; Waldeck v. Springfield F. & M. Ins. Co. 53 Wis. 129. In the latter case the rule is fully discussed in the opinion by Chief Justice Cole, and many cases here and elsewhere are cited to support it. Obviously the same rule applies to a mistake in proofs of death under a life policy. The' plaintiff testified on the trial that she deposed to such statements in the proofs of death on the faith of what others had told her, and not from actual knowledge.
3. The defendant further claims that plaintiff is estopped to maintain'this action on another ground. It is said that this is a mutual’ association, and that under its rules and by-laws the amount of this policy, if defendant is held liable to pay it, should be assessed upon the members existing at the time of Bachmeyer’s death, and them only, and that more than 1,000 persons who were then members have, by death or otherwise, ceased to be such, and several thousand other persons have since become members, and hence that such an assessment is impossible. In view of the fact that the membership of the defendant is constantly changing^ if the above proposition is sustained it would defeat the payment of all claims against the defendant upon policies the allowance of which has, by reason of litigation or any other cause, been suspended for any considerable time. We think the proposition is not a valid one. The by-laws require the executive committee to make an assessment once in two months, of such amount as it may deem sufficient to meet the current mortality of the association, upon the entire membership at the date of the last death of the audited claims prior thereto. No specific assessment is made to cover each case, but the assessments are based upon estimates of the amount which defendant will be required to' [262]*262pay. , The proceeds of these assessments are divided into two funds,— a “ death fund ” and a “ reserve fund.” Seventy-five per cent, of the proceeds of such assessments go to the former, and twenty-five per cent, to the latter, fund. The reserve fund is required to be invested in interest bearing securities. The death fund and the income of the reserve fund are appropriated to the payment of current claims. This leaves the reserve fund intact and constantly increasing. Out of the income of this fund all suspended claims may be paid, without doing any injustice to members of the association, or violating any of its rules or any principle of equity between the members. For example, an assessment is made in April of a given year to pay off existing claims by death made during the preceding February and March. . It may be that fifty members died during these two months,— half in February and half in March,— and that on the last audited claim the death occurred, say March 25th. Although large numbers of persons may have become members after most of these deaths occurred, but before March 2*5th, yet all these must be assessed. to pay off the policies issued to all such deceased members, and none of the latter will be assessed to pay any of such claims. It will thus be seen that the rule of assessment contended for is not found in the by-laws. Indeed, such a rule is impracticable, unless the rule of making a specific assessment for each loss be adopted. The rule of assessment of the defendant is the better rule, for it simplifies the procedure. Besides, it operates upon the members with reasonable equality; for, if a new policy be assessed to pay losses accruing before the inception thereof, the probability is that it will escape assessments made after its termination to pay losses accruing in like manner before its termination.
We conclude, therefore, that the plaintiff is not estopped to show that her proofs of death contain honest mistakes [263]*263of fact, nor defendant to show that it is not liable on the contract or policy in suit.
II. The learned circuit judge took from the jury the question whether or not the insured was insane at the time he took the drug which terminated his life. We .think this was error. The sworn statement of plaintiff that her husband was then insane was put in evidence by defendant; and, as against the plaintiff, it tends to prove such insanity, even though there were no other testimony tending in the same direction. It might not have that effect as against any other person who might be interested in the question, but no person other than the plaintiff has such interest. The case of Hiles v. Hanover F. Ins. Co. 65 Wis. 585, cited to the opposite doctrine, is not in point. It was there held that proofs of loss are not competent evidence in favor of the claimant of the facts stated therein, but only of compliance with the requirements of the policy. The same is true of proofs of death in case of a life policy.
Free access — add to your briefcase to read the full text and ask questions with AI
LyoN, C. J.
I. It is maintained on behalf of plaintiff that the judgment should be affirmed, and on behalf of defendant that it should be reversed, on the ground of estop-pel. These conflicting claims will, first be considered and disposed of.
1. It is argued for plaintiff that by calling for further proofs of the identity of “Maria” with “Marie” Bach-meyer, and putting the plaintiff to trouble and expense to supply such proofs after the- defendant was informed that [260]*260the insured died by his own hand while insane, and hence after it knew the facts which released it from liability on the policy, except for the assessments paid thereon, which it had already more than refunded, the defendant is es-topped to deny its liability on the policy for the whole amount of the insurance. This is an attempted application to this case of the rule laid down in Bigelow, Estoppel, 578, and adopted in Webster v. Phœnix Ins. Co. 36 Wis. 67, and in' many other cases in this court and elsewhere, to the .effect that “ a party cannot occupy inconsistent positions; and, where one has an election between inconsistent causes of action, he will be confined to that which he first adopts. Any decisive act of the party, done with knowledge of his rights and of the facts, determines his election and works an estoppel.” The rule is not applicable here for two reasons : (1) The defendant was entitled to know whether it had made the advance payment on the. policy to the proper beneficiary or to a stranger; (2) the by-laws of defendant authorized its board of directors or executive committee to make further payments on the policy, even to the full amount of the insurance, in their discretion, although the defendant was legally liable only for assessments paid upon the policy and interest. The defendant was entitled to be informed of the identity of the beneficiary in the policy with reference to making such further advances, should its authorized officers elect to do so. The defendant might properly- require the identification of the beneficiary for either of the above purposes, without becoming thereby es-topped to assert that it is not liable on the policy for the whole amount of insurance written therein.
2. The defendant maintains that the plaintiff is estopped to claim the insurance because, in her proofs of the death of her husband, she deposed that he committed suicide while insane, by which sworn statement it is claimed she is bound. This court has held in several cases that an honest [261]*261or unintentional mistake in the proofs of loss under a fire policy will not necessarily prevent a recovery tbereon, even though notice of the error is not given the insurers until the trial. Parker v. Amazon Ins. Co. 34 Wis. 363; Waldeck v. Springfield F. & M. Ins. Co. 53 Wis. 129. In the latter case the rule is fully discussed in the opinion by Chief Justice Cole, and many cases here and elsewhere are cited to support it. Obviously the same rule applies to a mistake in proofs of death under a life policy. The' plaintiff testified on the trial that she deposed to such statements in the proofs of death on the faith of what others had told her, and not from actual knowledge.
3. The defendant further claims that plaintiff is estopped to maintain'this action on another ground. It is said that this is a mutual’ association, and that under its rules and by-laws the amount of this policy, if defendant is held liable to pay it, should be assessed upon the members existing at the time of Bachmeyer’s death, and them only, and that more than 1,000 persons who were then members have, by death or otherwise, ceased to be such, and several thousand other persons have since become members, and hence that such an assessment is impossible. In view of the fact that the membership of the defendant is constantly changing^ if the above proposition is sustained it would defeat the payment of all claims against the defendant upon policies the allowance of which has, by reason of litigation or any other cause, been suspended for any considerable time. We think the proposition is not a valid one. The by-laws require the executive committee to make an assessment once in two months, of such amount as it may deem sufficient to meet the current mortality of the association, upon the entire membership at the date of the last death of the audited claims prior thereto. No specific assessment is made to cover each case, but the assessments are based upon estimates of the amount which defendant will be required to' [262]*262pay. , The proceeds of these assessments are divided into two funds,— a “ death fund ” and a “ reserve fund.” Seventy-five per cent, of the proceeds of such assessments go to the former, and twenty-five per cent, to the latter, fund. The reserve fund is required to be invested in interest bearing securities. The death fund and the income of the reserve fund are appropriated to the payment of current claims. This leaves the reserve fund intact and constantly increasing. Out of the income of this fund all suspended claims may be paid, without doing any injustice to members of the association, or violating any of its rules or any principle of equity between the members. For example, an assessment is made in April of a given year to pay off existing claims by death made during the preceding February and March. . It may be that fifty members died during these two months,— half in February and half in March,— and that on the last audited claim the death occurred, say March 25th. Although large numbers of persons may have become members after most of these deaths occurred, but before March 2*5th, yet all these must be assessed. to pay off the policies issued to all such deceased members, and none of the latter will be assessed to pay any of such claims. It will thus be seen that the rule of assessment contended for is not found in the by-laws. Indeed, such a rule is impracticable, unless the rule of making a specific assessment for each loss be adopted. The rule of assessment of the defendant is the better rule, for it simplifies the procedure. Besides, it operates upon the members with reasonable equality; for, if a new policy be assessed to pay losses accruing before the inception thereof, the probability is that it will escape assessments made after its termination to pay losses accruing in like manner before its termination.
We conclude, therefore, that the plaintiff is not estopped to show that her proofs of death contain honest mistakes [263]*263of fact, nor defendant to show that it is not liable on the contract or policy in suit.
II. The learned circuit judge took from the jury the question whether or not the insured was insane at the time he took the drug which terminated his life. We .think this was error. The sworn statement of plaintiff that her husband was then insane was put in evidence by defendant; and, as against the plaintiff, it tends to prove such insanity, even though there were no other testimony tending in the same direction. It might not have that effect as against any other person who might be interested in the question, but no person other than the plaintiff has such interest. The case of Hiles v. Hanover F. Ins. Co. 65 Wis. 585, cited to the opposite doctrine, is not in point. It was there held that proofs of loss are not competent evidence in favor of the claimant of the facts stated therein, but only of compliance with the requirements of the policy. The same is true of proofs of death in case of a life policy. Here the insurer, and not the claimant under the policy, offers the proof as evidence against the claimant of facts therein admitted by the latter. Insanity is a fact which may be proved, like any other fact, by the admissions of the adverse party of the existence thereof. Ye think, however, there is other testimony tending to prove the insanity of Bachmeyer at the time he took the fatal drug. The testimony shows that after living in reasonable harmony with his wife for twenty-three years, and after he was more than fifty years of age, the insured conceived the purpose of being divorced from his wife and marrying their adopted daughter, then but fifteen years old. If consulted in respect to the proposed project, the girl never consented thereto, and the plaintiff found it necessary to send her away from their home. Yet he compelled his wife to apply for a divorce from him, and to open negotiations for a home with her son by a former marriage. When informed on the day [264]*264of his death, just about the time he must have taken the poison, that his wife had not heard from her son, and that the girl was never to return home, he bewailed his fate, saying: “Oh, my God! I am an unfortunate man.” It would be a mercy to his memory could the evidence be held conclusive of his insanity. It would be against plain common sense to hold that it does not tend to prove his insanity, especially as against the plaintiff, who has sworn positively to its existence.
But it is argued that the error is immaterial. We do not so regard it. The defendant is a New York corporation, and the contract of insurance is, by its terina, a New York contract, to be interpreted by the laws of that state. The contract is that if the insured came to his death by his own hand, voluntarily or involuntarily, whether he was sane or insane at- the time, the defendant is not liable on the contract. The law of New York in respect to such a contract is laid down in De Gogorza v. Knickerbocker L. Ins. Co. 65 N. Y. 232, substantially as follows: “ If the insured commits suicide, although at the time utterly bereft of reason, it is a death by his own hand or act, within the meaning of the condition, and the policy is forfeited.” The case also holds that a suicide resulting from insanity is in no correct sense a death by accident. All the cases seem to agree that if one commits suicide by taking poison it is a death by his own hand. We do not understand that the law of New York differs from our law on the same subject as laid down by Chief Justice Dixon in Pierce v. Travelers’ L. Ins. Co. 34 Wis. 389. Indeed, the New York court quotes extensively from the opinion and professes to adopt the doctrine of that case.
The significance of the above observation is that if Bach-meyer was insane when he took the drug which terminated his life, there is no testimony which will support a finding that he took it by accident or unintentionally, and in such [265]*265case the verdict would necessarily be for the defendant. On the other hand, if the insured was then sane, it may be there is enough in the testimony to send to the jury the question whether he took the drug by mistake or unintentionally. We assume, without deciding, that in the event of his sanity the testimony was sufficient to send the question of accident or mistake to the jury. For the above reasons it must be held that the error 'in taking the question of the insanity of the insured from the jury is material, and hence necessarily fatal to the judgment.
By the Court.— The judgment of the circuit court is reversed, and the cause will be remanded for a new trial.