Fidelity & Cas. Co. of New York v. Freeman

• Decision Date: 04 June 1901
• Docket Number: 824.
• Citation: 109 F. 847
• Court: U.S. Court of Appeals — Sixth Circuit
• Parties: FIDELITY & CASUALTY CO. OF NEW YORK v. FREEMAN.

109 F. 847

FIDELITY & CASUALTY CO. OF NEW YORK v. FREEMAN.

No. 824.

United States Court of Appeals, Sixth Circuit.

June 4, 1901

Albert D. Marks, for plaintiff in error.

Jordan Stokes, for defendant in error.

This is an action at law, removed into the court below from the circuit court for Wilson county, Tenn., upon the petition of the above-named plaintiff in error. The plaintiff sued as the administrator of C. C. H. Burton, deceased, to recover upon an accident policy issued to the said Burton March 26, 1896 in the sum of $2,500, in case of death, with provision for a weekly indemnity for injuries not resulting in death; the policy to be in force for one year. Injuries self-inflicted whether resulting fatally or not, were excluded by the terms of the policy. So also were all injuries received 'while or in consequence of' the insured being affected by (among other things) 'vertigo, fits, or any disease or bodily infirmity. ' One of the conditions was that no suit should be brought upon the policy unless begun within six months from the time of death or other injury. The insured came to his death on the 8th of September, 1896, from injuries received by him from falling off, or throwing himself off, a railroad train on the 4th of the same month. Freeman was appointed administrator of his estate by the proper probate court, and qualified as such, it being then supposed that Burton died intestate. Upon a representation that the estate was insolvent, the administration thereof was removed under a provision of a state statute into the chancery court. The insurance company having denied its liability, Freeman brought this suit in January, 1897, having received his letters of administration. On April 29, 1897, a will made by Burton, which had meantime been discovered, was probated, and it was ordered that letters testamentary be issued to Freeman, as administrator with the will annexed and on the same day he qualified as such. But on the 26th of April, 1897, in the proceeding pending in the chancery court, the heirs and distributees of Burton entered into an agreement that the will should 'be set aside, and for nothing held, and that the estate of said Burton shall be settled as if no will was ever probated. ' Thereupon the chancery court, reciting this agreement, ordered that it be 'in all things confirmed and approved, and is made the decree of this court. The estate of said C. C. H. Burton will be settled in accordance with said agreement, and without any reference to the will, which has been probated. ' Meantime, by leave of the court, the declaration in the present suit was amended by making Freeman, as administrator with the will annexed, a party plaintiff in the case, and it was ordered that 'this cause will hereafter proceed in the name of Freeman in his double capacity of administrator and of administrator with the will annexed. ' To the maintenance of the suit the insurance company interposed several defenses, as follows: (1) That the deceased came to his death by suicide; (2) that, for aught that appeared, the defendant's falling off the train was in consequence of vertigo, fits, or some disease or bodily infirmity; (3) that the suit abated upon the probating of the will of the deceased and the appointment of Freeman as administrator with the will annexed, and that upon the amendment of the declaration by bringing in Freeman as administrator with the will annexed a new suit was brought, and this more than six months after the death of the assured. Another question arose upon the pleadings, involving the effect of the representations made by the deceased upon which the policy in suit was issued. The twenty-second section of chapter 160 of [109 F. 849] the Acts of Tennessee, passed in 1895, entitled 'An act to govern and regulate the business of insurance, other than life and casualty insurance upon the assessment plan, and to repeal all laws, or parts of laws in conflict with this act,' is as follows: 'No written or oral misrepresentation or warranty therein, made in the negotiation of a contract or policy of insurance, or in the application therefor by the assured, or in his behalf, shall be deemed material, or defeat or void the policy, or prevent its attaching, unless such misrepresentation is made with actual intent to deceive, or unless the matter represented increases the risk of loss. ' For the insurance company it was contended that this statute was unwarranted class legislation, and was unconstitutional. These are the four principal points here presented for review. The case was tried before a jury. At the close of the testimony the defendant prayed for an instruction from the court that a verdict should be rendered in its favor upon the ground that it was clearly established that the death of the insured was by suicide. This instruction was refused, and a verdict was rendered in favor of the plaintiff. The insurance company brings the case here on writ of error.

Before LURTON, DAY, and SEVERENS, Circuit Judges.

SEVERENS Circuit Judge, having made the foregoing statement of the case, .

1. It is contended that the evidence established beyond doubt that the deceased committed suicide, and that the court should, for that reason, have instructed the jury that the plaintiff was not entitled to recover. The evidence upon which this peremptory instruction was asked tended to show that for some time prior to his death Burton had been in straitened financial circumstances; that his property was heavily incumbered; that his house, which was mortgaged, and his personal property, which had been seized on execution, were about to be sold; that he had just before been making strenuous efforts to borrow money to tide him over his distress, but had failed; that he had forged a mortgage, and the certificate of acknowledgment thereof, on which he had made an attempt to borrow money; that he had, a year before, borrowed money upon false representations in regard to the freedom of his property from incumbrances; that he was being threatened with prosecution for these offenses; that he had four daughters living at home with him, who were dependent upon him for support; and that just before his death he had been making efforts to secure as much accident insurance as possible in addition to that which he was then carrying, and had succeeded in effecting enough to make in all $16,000. But it was also shown that he was a man of sanguine temperament, that he had been accustomed to keep considerable insurance upon his life and against accidents, and that after his death his property sold for enough to pay off all his debts. At the time of his death he was returning home from an ineffectual effort to raise money to save his home and personal property from forced sale. He was last seen before his injury upon the platform of the car on which he was riding, and not long afterwards was found by the side of the track, mortally injured. No doubt these circumstances, taken together, were well calculated to excite grave suspicion that the assured had thrown himself from the train with intent to destroy himself, but they were by no means conclusive; nor did they so clearly demonstrate that conclusion as to compel the finding by the jury that it must be so. Taking into account, in connection with all the circumstances above enumerated, the common instinct of mankind to hold on to life, and his strong affection for his daughters, and his earnest purpose to care for and protect them, we cannot say that it would be unreasonable to conclude that the death of the assured was accidental, and not purposed. It was a question upon which the minds of jurors might fairly be convinced that the fact was one way or the other. The legal presumption was against the fact of suicide, and the burden of proof was upon the insurer. In these circumstances there was no error in refusing the instruction requested.

2. It is further contended here that the jury should have been instructed that the burden of proof was upon the plaintiff to prove that the deceased did not come to his death in consequence of, or while suffering from, vertigo, fits, or other disease. But we are unable to find in the record any request by the plaintiff in error to instruct the jury upon this point, or any exception to such part of the charge as might inferentially imply the contrary of what is now insisted upon as the correct theory upon the subject. This being so, the question is not before us. It is useless to cite authority upon a proposition so well settled. Moreover, the bill of exceptions indicates that, when the case came to go to the jury, it was, without objection by either party, reduced by the court, so far as the facts were involved, to the single question whether the assured came to his death by suicide or not.

3. Another supposed error assigned is that the probate of the will revoked the plaintiff's letters of administration and that the amendment by which he was permitted to proceed with the case as administrator with the will annexed operated to the effect of enabling him to bring a new suit, and that the six months allowed for bringing the action had expired before the amendment was made. If this question had arisen upon the early common law of England, it might be attended with difficulty on account of the widely different character of an executor from that of an administrator at that time. The executor derived his authority from the will. He was not an officer of the court, but was regarded as a trustee for the purposes declared by the testator, and could, before probate, do nearly all things required for the settlement of the estate except that he could not bring suits in the courts. The probate was for the purpose of definitely determining his character, and...