Continental Insurance Co. v. Delpeuch
| Decision Date | 09 October 1876 |
| Citation | 82 Pa. 225 |
| Parties | Continental Insurance Co. <I>versus</I> Delpeuch. |
| Court | Pennsylvania Supreme Court |
Before AGNEW, C. J., SHARSWOOD, MERCUR, GORDON, PAXSON and WOODWARD JJ. WILLIAMS, J., absent
Error to the Court of Common Pleas of Bradford county: Of January Term 1876, No. 36. Certified from Eastern District.
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Smith & Montayne (with whom was William McCandless), for plaintiff in error.—The service upon the company was illegal and inadequate. It does not aver to have been made on the agent of the company, but only on D. S. Burnham, general agent. It does not allege or pretend that the agent of the company had been served. The court should have granted an appeal from the award of arbitrators, because notice of this rule was not served on defendant nor its agent, but only upon its attorneys de bene esse, who came in to contest validity of service and whose functions ceased when this issue was determined. The agreement entered into by the parties should not have been an obstacle to the introduction of testimony to show that decedent had perpetrated a fraud upon the company. The agreement itself was invalid, obtained as it was, and should not have been interposed as a bar to proof that the policy itself was invalid. The offers to show by declarations of decedent's wife and others, that a suicidal mania possessed him; that he appeared to be setting his house in order, and that he was in contemplation of suicide, should have been admitted. According to the theory of plaintiff, decedent, when attempting to cross the stream, was drowned, and his body floated into the shallow water some forty or fifty feet from the edge of the gravel bar on the Sheshequin side. It was therefore competent to show by persons intimately acquainted with the eddies and currents of the river, that it was impossible for a body to float in the direction where Smith's body was found. The opinions and convictions of decedent upon spiritualism and death, long entertained and frequently and unhesitatingly expressed, predisposed a morbid mind to thoughts of death, and it was error to limit his conversations to the time immediately preceding his demise, and when the court admitted evidence of the spiritualism of decedent, it was error to exclude what he believed he could do in the spiritual world, for such hopes could not fail to lessen his fears of death. Medically speaking, the drowning is presumptively suicidal when there are no marks of violence, and where the body is found in shallow water: Burrill on Circumstantial Evidence, p. 716.
Patrick and Davies & Carnochan and H. Peet, for defendant in error.—The sheriff was directed to serve the summons on the general agent of the company, and he returns that he did so serve it, and it is not pretended that D. S. Burnham was not the general agent of the company; but admitting that the service was inadequate, the plaintiff in error is precluded from urging this defence by the agreement of February 3d 1875, which provides for a trial by jury, and which was the voluntary act of the company. For like reasons the company was estopped from alleging error as to the award, and from offering the testimony in regard to a suicidal tendency in Smith's family. The offers in regard to the accidental policy were an attempt to get before the jury, by parol, the contents of a written instrument, and were properly rejected. The burden of proof is upon the party who alleges suicide and it is not to be presumed from the fact of death and its circumstances, but must be proved. The question of suicide was purely one of fact, and entirely for the jury.
If originally the rulings covered by the first and second assignments were erroneous, they were cured by the subsequent agreement. It stipulated "that upon the trial of said cause * * * said defendant shall not set up nor attempt to maintain any defence except that the said Valentine Smith came to his death by an act of suicide."
The plaintiff in error cannot now allege a defective service of the summons, nor an irregular award of arbitrators. In an attempt to appeal from the award, the company had neglected to give the bail absolute, which the Act of Assembly requires from a foreign corporation. The time fixed by the statute for perfecting the appeal had expired. A rule to show cause why the appeal should not be stricken off had been made absolute. It is true, more than a month thereafter, the court granted a rule to show cause why the recognisance on the appeal from the award should not be perfected. Whether the court then had any power to grant the relief asked for, it is not necessary now to decide. Without waiting for a decision of the court, the parties, by agreement in writing filed, stipulated that the judgment and decree of the court by which the appeal had been stricken off be annulled, the bail be perfected and the case be tried under the limitations and restrictions stated in the agreement. It confined the defence to proof of suicide only. It was by virtue of that agreement only the plaintiff in error acquired a right of trial in the Common Pleas. Having accepted its benefits, and enjoyed the rights thereby given, the company cannot now repudiate a part of the agreement. It contravened no rule or policy of law. All the stipulations therein are binding on the parties. It was too late for the company to allege that the agreement was executed through ignorance or misapprehension of facts connected with the issuing of the policy. The same reasons require the dismissal of the tenth and eleventh assignments.
We are unable to discover any error in the rejection of the evidence covered by the ninth, twelfth, thirteenth, fourteenth, fifteenth and sixteenth assignments. An opinion expressed by Mrs. Smith in the lifetime and in the absence of her husband, cannot affect the right of...
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