Mutual Life Insurance v. Wiswell

35 L.R.A. 258, 44 P. 996, 56 Kan. 765, 1896 Kan. LEXIS 93

• Court: Supreme Court of Kansas
• Decided: May 9, 1896
• Docket: No. 8376
• Status: Published

Opinion

The opinion of the court was delivered by

Martin, C. J.

: I. The plaintiff in error contends that under the pleadings the burden was upon the plaintiff below to prove by a preponderance of the evidence that the death of the assured from taking the opium or other poisonous substance was unintentional and accidental. There is no room to doubt that the taking of the opium was the act of the assured ; but the courts are in general accord in holding that the words of a condition avoiding the policy if the assured shall die “by his own hand” or “by his own act” are equivalent to a proviso against suicide or intentional self-destruction. ( Bliss, Life Ins. §§228, 229; 2 Biddle, Ins. §831; Life Ins. Co. v. Terry, 15 Wall. 580, 591; Penfold v. Universal Life Ins. Co., 85 N. Y. 317, 321, 322 ; N. W. Mutual Life Ins. Co. v. Hazelett, 105 Ind. 212; Eq. Life Assurance Soc. v. Paterson, 41 Ga. 338, 367.) Unless the answer be construed as intending to allege, suicide as a defense, it was insufficient in this respect, and no reply thereto was necessary, and a general denial would be sufficient if the insurance company had alleged the suicide of the assured. We therefore hold that the burden of proof was not changed by reason of the condition of the pleadings ; and, in order to a successful defense on this ground, it devolved upon the insurance company to establish by a preponderance of the evidence that the taking of the opium was with intent on the part of the assured to take his own life, and the court did not err in this respect in giving instructions 4, 5, and 8.

II. S. Fred Harker, then being a school-teacher, 20 years of age, was adjudged insane in the probate court of Perry county, Illinois, on November 5, 1885, the verdict reciting that the cause of insanity was excessive study, and that Harker manifested suicidal tendencies. He was committed to the asylum for the insane at Anna, 111., on the next day, and on December 34 the superintendent wrote to the authorities of Perry county, notifying them that Harker had recovered, and asking them to remove him within 30 days, and he was finally discharged from the asylum December 24, 1885. The testimony shows that, while at the institution, Harker was afflicted with acute melancholia, a mild form of insanity unaccompanied by delusion. Afterward, he was a student at the university at Ottawa, Kan., further preparing himself as a teacher and for the Baptist ministry. He then became the principal of the high school at Columbus, and during the vacation of 1890 he visited relatives at Sioux City, Iowa, and El Dorado, Kan., returning to Columbus on July 3, with a view to an engagement for preaching to the Baptist congregation for three months, having so served them before occasionally in the absence of the regular pastor. There was testimony that Harker suffered to some extent from insomnia, and that he took powders for the purpose of producing sleep. He was discovered in an unconscious condition in his room on the afternoon of July 5, and he died that night at about half past 9 o’clock, the physicians being of opinion that the death yas from opium poisoning. The theory of the plaintiff was, that Harker had accidentally taken an overd/ose of morphine powders or opium to produce sleep, wfyile the defendant maintained that he had committed suicide. Certain circumstances tended to support each of these conflicting theories, and instruction 9 may have been of much, importance ; but it seems to be fairly settled that in the absence of satisfactory evidence as to the death being accidental or suicidal the presumption is in favor of thedheory of accidental death. (Bliss, Life Ins. § 367 ; 1 May, Ins. § 325 ; 2 Biddle, Ins. § 842 ; Insurance Co. v. Bennett, 90 Tenn. 256, 261; Keels v. Mutual Reserve Fund Life Association, 29 Fed. Rep. 198 ; Mallory v. Travelers’ Ins. Co., 47 N. Y. 52, 54; Travelers’ Ins. Co. v. McConkey, 127 U. S. 661, 667.)

III. A mere misstatement, unless wilful and fraudulent, will not avoid the policy, in the absence of a warranty of the truth of the statement. (Washington Life Ins. Co. v. Haney, 10 Kan. 525 ; N. W. Mutual Life Ins. Co. v. Woods, 54 id. 663.) The trial court, however, treated the answer to question 9 as a warranty, as fully shown by instructions 10, 11, 12, and 13. A-single expression occurs in instruction 12 which might indicate that the court had in mind the law as to a misstatement in the absence of Warranty; but, as it is immediately followed by the direction that, if the jury believed from all the evidence that the answer to said question was in fact untrue, they should find for the defendant, we tliink that the fault of referring to the knowledge of the applicant must be deemed immaterial. There was no evidence tending to show hereditary insanity, or that the assured was mentally afflicted at any time after his discharge from the asylum in 1885. The presumption of continued insanity arising from an adjudication thereof may be overcome by evidence other than an adjudication of restoration (Water-Supply Co. v. Root, ante, p. 187; Rodgers v. Rodgers, ante, p. 483, 43 Pac. Rep. 779), and on this point instruction 12 was correct; and, as there was no intimation of any recurrence of the 'malady, there was no evidence, except the record of adjudication of insanity in 1885, that the answer of the assured to question 9 was in fact untrue, and any presumption arising from that record was fully rebutted by the evidence.

Some questions are raised upon the introduction of evidence, but they are without substantial merit, and the judgment must be affirmed.

All the Justices concurring.