Ferrand v. New York Life Ins. Co.
| Decision Date | 24 March 1934 |
| Docket Number | No. 9726.,9726. |
| Citation | 69 F.2d 159 |
| Parties | FERRAND v. NEW YORK LIFE INS. CO. |
| Court | U.S. Court of Appeals — Eighth Circuit |
J. L. London, of St., Louis, Mo. (W. H. Saunders and Leahy, Saunders & Walther, all of St. Louis, Mo., on the brief), for appellant.
James C. Jones, Jr., of St. Louis, Mo. (James C. Jones, Lon O. Hocker, and William O. Reeder, all of St. Louis, Mo., Louis H. Cooke, of New York City, and Jones, Hocker, Sullivan, Gladney & Reeder, of St. Louis, Mo., on the brief), for appellee.
Before STONE, SANBORN, and VAN VALKENBURGH, Circuit Judges.
This is an action by beneficiary of a life insurance policy to recover double indemnity on account of accidental death. From a judgment on verdict favoring defendant, plaintiff appeals.
While a number of points are argued by the parties, all of them resolve into three propositions, as follows: I, That the incontestable clause in the policy prevented the defense of suicide; II, that a Missouri statute prevents the same defense; and III, that the charge was erroneous in defining the burden of proof.
I. The policy is admittedly an Illinois contract. It provided for the payment of $5,000 upon death and contained two provisions as follows. The first, relating to incontestability, is:
"This Policy is free of conditions as to residence, travel, occupation, or military or naval service, except as provided under Double Indemnity on the first page hereof, and shall be incontestable after two years from its date of issue except for non-payment of premium."
The second is a double indemnity clause providing for payment of an additional $5,000 should the death be effected solely through "external, violent and accidental cause." A further provision of this clause, in so far as here pertinent, is "This double indemnity benefit will not apply if the insured's death resulted from self-destruction, whether sane or insane." The answer alleged that the death of insured "was the result of self-destruction." Over the continued and vigorous protest of the plaintiff the court submitted the case to the jury on the theory that the only real issue was whether the death was due to an accident or to a suicidal act.
Appellant contends that the above incontestable clause applies to and governs the suicide provision in the double indemnity clause. This contention is based on appellant's construction of the particular wording in the policy and, also, on general principle. There is no basis for this position on either ground. The wording of the policy does not admit of the construction sought to be placed upon it and this court (Mack v. Conn. General Life Insurance Co., 12 F.(2d) 416, 418) has directly held that there is no inconsistency between the two provisions and that the incontestable provision does not apply to the double indemnity provision which is a matter of defining the risk assumed.
II. The contention that a statute of the state of Missouri prevents the defense of...
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