International Life Ins. Co. v. Mowbray

• Citation: 22 F.2d 952
• Decision Date: 07 December 1927
• Docket Number: No. 3839.,3839.
• Parties: INTERNATIONAL LIFE INS. CO. v. MOWBRAY et al.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

22 F.2d 952 (1927)

INTERNATIONAL LIFE INS. CO. v. MOWBRAY et al.

No. 3839.

Circuit Court of Appeals, Seventh Circuit.

December 7, 1927.

John M. Atkinson, of St. Louis, Mo., for plaintiff in error.

Franklin J. Stransky, of Chicago, Ill., for defendants in error.

Before ALSCHULER, EVANS, and ANDERSON, Circuit Judges.

EVAN A. EVANS, Circuit Judge (after stating the facts as above).

Throughout this

opinion, parties will be described as in the District Court.

Defendant contends that the evidence conclusively shows that assured committed suicide. Its maximum liability was therefore limited to $5,000. It further contends that, if this issue was for the jury, the court erred both in the admission of evidence and in charging the jury.

It is hardly necessary to set forth in detail all the evidence that bore upon this issue. The assured, who was 36 years old and in good health, was asphyxiated while on a short visit to Chicago. On the wall of the rooming house where he stopped, there was a combination gas and electric light fixture supplied with two buttons a few inches apart, one for turning on the gas and the other for the electric lights. Assured turned on the gas and the question was: Did he do it accidentally or intentionally?

It appeared that the assured was a dealer in farm land and had shipped live stock to Chicago. He moved from Iowa to Illinois in 1918. Shortly before his death, he lost some money on a real estate investment. His financial condition does not appear. His family consisted of a wife and two minor children. There was no evidence of unhappy or disturbed domestic relations. Upon his last trip to Chicago assured was accompanied by a friend, to whom he owed some $300. While in Chicago $200 of this indebtedness was paid. The two men remained in the city a couple of days. They attended a theater one evening. They remained in a rooming house two nights, the second night occupying different rooms. On the second day the two men drank considerable liquor. It was late when they retired, assured retaining an unfinished bottle of whisky. The room was locked and the window was shut. There was less whisky in the bottle in the morning than when the parties separated. In the morning, the landlady detected the odor of gas and traced it to the room. Upon entering the room, it was found that the gas jet was open and the assured was dead.

This, in brief, is the story. We agree with the District Judge that these facts presented a jury question on the issue of accidental death.

Upon the trial, the court received in evidence the coroner's verdict, which declared "the asphyxiation to be accidental." Error is assigned upon the reception of this evidence. Defendant refused to admit the reception of timely proof of death upon blanks by it furnished. It was therefore a part of plaintiffs' burden to show that such proof was seasonably furnished.

Moreover, the court charged the jury that such evidence had been stricken out, "and you therefore must not consider the same as evidence or attach any weight whatever to the same in determining any fact or facts in this case." This charge obviously cured any error, if error there was, in the reception of this evidence. Likewise we think defendant's failure to admit the timely service of proof of death made this evidence admissible.

The court charged the jury respecting the presumption of law against suicide as follows: "The court instructs the jury that to commit suicide is contrary to the general conduct of mankind and shows moral turpitude in a sane person, and therefore the presumption of law is against the theory of suicide, and before the jury can find that said David L. Mowbray committed suicide there must be evidence introduced sufficiently strong to overcome such presumption and to convince the jury affirmatively that said David L. Mowbray committed suicide. While this presumption of law is disputable and subject to be overcome by evidence which discloses that the deceased in fact committed suicide, it is nevertheless entitled to weight as affirmative evidence to support the theory of accidental death."

To this charge defendant excepted in the following language: "Defendant excepts to that part of the general charge of the court relative to the presumption against suicide as being erroneous and too broad." Before the charge was given, defendant requested certain instructions on suicide. It did not, however, except to the court's failure to give any of these instructions. The above exception, therefore, did not preserve any error based on the court's refusal to give proposed instructions. We have, however, read all the instructions bearing upon suicide, and find them to be eminently fair, comprehensive, and free from error.

Defendant's chief reliance, however, is on its second defense. The clause depended upon reads: "No suit shall be brought or maintained to collect under this policy unless commenced within one year from the time of knowledge by the beneficiary of the death of the insured." The beneficiaries learned of the death of their father immediately after it occurred. More than four years elapsed between the date of the death of the assured and the date of commencement of this action.

Plaintiffs seek to avoid the effect of this provision and these facts by citing the Illinois statutes which read:

"No policy of life insurance shall be issued or delivered in this State, or be issued by a life insurance company organized under the laws of this State, if it contain any of the following provisions:

"1. A provision limiting the time within which any action at law or in equity may be commenced to less than three years after the cause of action shall accrue." Smith-Hurd's Illinois Revised Statutes 1925, p. 1515, c. 73, § 262.

"No life insurance company or association organized under the laws of this State, or doing business within the limits of the same, shall make or permit any distinction or discrimination between insurants of the same class and equal expectation of life in its established rates; * * * nor in the terms and conditions of the contract between such company and the insurants."

Smith-Hurd's Illinois Revised Statutes 1925, p. 1511.

Defendant contends that the validity of an insurance contract is to be determined by the law of the state where it is made; that the original insurance contract in the instant case was an Iowa contract; that the transaction by which the defendant became liable on the policy did not constitute reinsurance, but was merely the transfer of the policy, and the assumption of the obligation created thereby in accordance with the terms of said policy was originally issued; that the reinstatement of the assured...