Craiger v. Modern Woodmen of America

80 N.E. 429, 40 Ind. App. 279, 1907 Ind. App. LEXIS 55

• Court: Indiana Court of Appeals
• Decided: February 28, 1907
• Docket: No. 5,794
• Status: Published

Opinions

Roby, P. J.

Appellant sued upon a benefit certificate issued to her son by appellee, she being the beneficiary therein named.

She averred in her complaint the death of the insured, the performance of all the conditions of the contract on her part and on the part of the decedent, and that proofs of death were made out on blanks furnished by appellee and forwarded to and accepted by it as satisfactory. To this complaint appellee answered in two paragraphs; the first a general denial, and in the second set up suicide, in violation of the provisions of the contract. To the second paragraph of answer a general denial was filed. The cause was submitted to a jury, and a verdict returned in appellee’s favor.

The error assigned is the overruling of the appellant’s motion for a new trial. The grounds for a new trial stated are that the court erred in permitting appellee to introduce in evidence a copy of the coroner’s verdict, which was attached to the proofs of death, and in refusing to give instruction seven, requested. Appellee’s by-laws required that, in case an inquest was held, a duly authenticated and certified copy of the coroner’s proceedings, all evidence, and the verdict must accompany the proofs. This requirement was stated upon the blanks furnished to appellant for such use. She attached to such proofs a copy of the evidence taken by the coroner, together with his return, the finding of-which was that the assured “came to his death by reason of drinking carbolic acid with suicidal intent, evidently while in a deranged state of mind.” The testimony of a number of witnesses was taken by the coroner and accompanied the proofs. In her statement as to the cause of death made in said proofs, affiant said that she had no personal knowledge, but had been told, that the death resulted from the taking of carbolic acid, but that she did not think it true.

1. The appellant neither pleaded nor proved anything with regard to the contents of the proofs of death, bnt relied upon the fact that she had made some attempt to comply with the company’s requirements and that it had estopped itself from setting up in defense to the action the fact that the proofs were defective. In support of this averment appellant did not introduce any evidence as to the contents of the proofs submitted by her, she being satisfied with her evidence on that point; the proofs were not admissible when offered by appellee upon such issue, they in nowise tending to controvert appellant’s evidence.- The contract by which proofs of death were required did not stipulate the purpose of such proofs; but preliminary proofs, when furnished, are only evidence that the insured has complied with the requisites of the policy. 2 May, Insurance (4th ed.), §465; Knights Templars, etc., Co. v. Crayton (1904), 209 Ill. 550, 70 N. E. 1066; Dougherty v. Pacific Mut. Life Ins. Co. (1893), 154 Pa. St. 385, 25 Atl. 739; Travelers Ins. Co. v. Nicklas (1898), 88 Md. 470, 41 Atl. 906; Cummins v. German American Ins. Co. (1899), 192 Pa. St. 359, 43 Atl. 1016. They were not admissible in evidence under the general denial, since nothing therein contained negatived any material averment of the complaint. If admissible they were only so in support of the answer setting up death by suicide. The contract of the parties does not stipulate that they shall be taken as evidence to support an affirmative issue of such a nature. It is therefore unnecessary to determine whether a contract of such a nature could be recognized.

2. Proofs may be used as admissions against the beneficiary. The rule is that such preliminary proofs are admissible as prima facie evidence of the facts therein stated against the assured and on behalf of the company. 3 Elliott, Evidence, §2387; Mutual Benefit Life Ins. Co. v. Higginbotham (1877), 95 U. S. 380, 390, 24 L. Ed. 499. The theory upon which such proofs are admitted in evidence is universally that of an admission.

3. The beneficiary in this ease was required by the by-laws of the company to submit a duly authenticated and duly certified copy of the coroner’s proceedings, all evidenee, and the verdict. Compliance with such requirement amounted to an admission that an inquest was had; that certain evidence was heard, and a certain verdict rendered, but it could not, by any stretch of imagination, be taken as an admission of the truth of the testimony or the accuracy of the verdict. So that the quality essential to the introduction of the coroner’s verdict and proceedings, as evidence of the truth of the facts therein recited, was wholly lacking. It has been heretofore held by this court that the coroner’s verdict is not admissible in evidence. Union Cent. Life Ins. Co. v. Hollowell (1896), 14 Ind. App. 611. See, also, Cox v. Royal Tribe (1903), 42 Ore. 365, 71 Pac. 73, 60 L. R. A. 620. Illinois, Iowa and Mississippi are the only states in which the contrary is now held, and cases decided by the courts of those states are therefore irrelevant to the point now under consideration. Aetna Life Ins. Co. v. Milward (1904), 118 Ky. 716, 82 S. W. 364, 68 L. R. A. 285, monographic note 2. The mere fact that such record was furnished to appellant by appellee can in nowise change either the reason for the rule or the rule itself.

In this case the proofs themselves show that appellant refused to admit the truth of the facts found by the coroner, but explicitly announced her disbelief in their truth. She cannot be held to have admitted the truth of the fact which she expressly denied. In Goldschmidt v. Mutual Life Ins. Co. (1886), 102 N. Y. 486, 7 N. E. 408, the beneficiary, in attaching the copy of the coroner’s verdict, stated that he refused to be bound by it. The court held that it was error to admit such proofs in evidence. In Fisher v. Fidelity Mut. Life Assn. (1898), 188 Pa. St. 1, 41 Atl. 467, the proofs, with a copy of the coroner’s verdict attached, were introduced' in evidence, but the court instructed the jury that such evidence was not competent, pointing out that it could only be competent as an admission of a fact which was expressly denied. That the court erred in permitting the affirmative defense to be established by the introduction of a transcript of the evidence of three witnesses examined before the coroner, together with his verdict, is so clear upon principle that a detailed examination of the various cases decided by various courts, relative to the admission of proofs of death under other conditions than those here developed, may be excused.

4. Upon a retrial of the cause, the witnesses, whose evidence was thus exhibited to the jury, may be called in person, examined in open court, subjected to the test of cross-examination, and the basis for a legal conclusion thus fixed in accordance with the recognized principles of law.

Judgment reversed and cause remanded with instructions to sustain the motion for a new trial and for further consistent proceedings.

Hadley, Watson and Rabb, JJ., concur. Myers, C. J., absent. Comstock, J., dissents.