Green v. N.Y. Life Ins. Co.

• Decision Date: 11 May 1921
• Docket Number: No. 33842.,33842.
• Parties: GREEN v. NEW YORK LIFE INS. CO.
• Court: Iowa Supreme Court

192 Iowa 32

182 N.W. 808

GREEN

v.NEW YORK LIFE INS. CO.

No. 33842.

Supreme Court of Iowa.

May 11, 1921.

Appeal from District Court, Linn County; F. F. Dawley, Judge.

Action to recover on a policy of insurance. Defenses were interposed that the insured committed suicide and that certain answers made to the medical examiner by the insured were false. The trial court directed a verdict for defendant. Plaintiff appeals. Affirmed.Don Barnes and J. U. Yessler, both of Cedar Rapids, for appellant.

Stipp, Perry, Bannister & Starzinger, of Des Moines, and Grimm, Wheeler & Elliott, of Cedar Rapids, for appellee.

FAVILLE, J.

On the 24th day of April, 1917, the defendant insurance company issued a policy of insurance in the sum of $3,000 upon the life of one Robert J. Balous. The wife of the said insured was made beneficiary in the said policy of insurance and has assigned her rights therein to the appellant. The said Balous died on the 2d day of April, 1918. The policy of insurance contained the following provisions:

“ Self-Destruction.--In the event of self-destruction during the first two insurance years, whether the insured be sane or insane, the insurance under this policy shall be a sum equal to the premiums thereon which have been paid to and received by the company and no more.”

The appellee company tendered and offered to pay the amount of the premiums that it had received from the insured and specifically alleged in its answer that the said Balous died by suicide.

The insured was 38 years of age at the time of his death. He had been married for about 20 years and had one daughter ____ years of age, and his family consisted of himself, his wife, and this daughter. He owned his own home in Cedar Rapids, and since early manhood had been employed as a carpenter, until within about a year prior to his death, when he engaged in conducting a soft-drink parlor in the city of Cedar Rapids. His family life was agreeable and pleasant, and he was on affectionate terms with his wife and daughter. In addition to his home, he owned some vacant lots in the city of Cedar Rapids and the stock of goods used in his business. He had an automobile and some Liberty Bonds, and was out of debt, and his business was reasonably prosperous.

His wife and daughter testified that he was a man of good spirits. His wife testified that there had been some change in the insured's weight and in his personal appearance in the last two or three years; that he had picked up a good deal and felt better than he had when he was working at his trade as a carpenter. She said that the indoor work was better for him than the outdoor work; that when he worked outdoors, he was subject to colds; that once in a while he would complain of his stomach, and once in a while he had a headache.

A witness who had known the insured about 24 years, saw him almost every week, and had been on a bowling team with him, testified that the insured had the appearance of a healthy man and had told the witness that his business was good.

Another witness testified that he saw the insured during the last year or so of his life two or three times a month; that he was “kind of a free, lively disposition, and bright,” and never complained to the witness regarding his health.

Another witness testified that he had seen the insured frequently during the last three or four years of his life, and that he was an energetic, bright man, and appeared to be in splendid health. He had not seen him often within the last year.

An employee of the insured testified that he had been acquainted with him for four or five years, and that he appeared to him to be jovial and healthy; that it was his custom to come to work between 10:30 and 1:00 o'clock.

Another witness testified that he had been acquainted with the insured for about eight years and that he seemed to be a man in good spirits and feeling well.

The appellee offered testimony of a witness whose place of business was located near that of the insured, and who testified that he had a conversation with the insured three or four days before his death, in which the insured told the witness that he had gallstones and that he was worried. The witness said he thought the insured said something about having an operation, which was worrying him, and the witness told the insured that he (the witness) had felt for a long time that he also had gallstones and that there was nothing to worry about.

Another witness for appellee testified that he had known the insured for about six months and was in his place frequently; that he had a conversation with him three or four days before his death, and insured said to the witness that he was all right, only had a few things on his mind that he wished were off, and, in reply to an inquiry as to what was the trouble, said, “I got to have an operation performed for gallstones,” and that the day before his death, about 3:30 to 4 o'clock in the afternoon, he told the witness that he was going home; that he did not feel good.

A physician testified that he was called to treat the insured some time during the year 1916; that when he arrived at the insured's house, he found that he was not suffering, but the physician was informed that he had had a bad attack and had suffered a good deal. The physician testified that he had been phoned for, and before he arrived, the insured had had a vomiting spell, but that when he got there the insured was feeling much better; that he informed the insured that it was impossible to tell what the trouble was; that it might have been an attack of acute indigestion, and he might have gallstones or trouble with the gall bladder. He said that thereafter, up to the first of the year 1917, the insured came to his office a few times and complained of stomach trouble; that he gave the insured medicine to relieve his condition and told him that if he had gallstones he would never get well until he was operated on. The physician said he did not know when this conversation took place and that he told him this half in earnest and half jokingly.

Another witness for the appellee testified that he was acquainted with the insured and had a conversation with him in 1915, when he was working for the witness and was off a day or so on account of illness, and on his return stated to the witness that he thought he was having some trouble with his gall bladder and stomach.

The appellee also offered a witness who was at the home of insured immediately following the shooting, and he testified that at that time the wife of the insured stated that she did not understand why he should shoot himself; that she had urged him to go to the hospital and undergo an operation for gallstones to relieve his suffering; that she said she was heating cloths to apply to him to relieve his pains, and he went upstairs while she was heating the cloths, and she heard the shot and found him there.

A neighbor lady testified that she was at the home immediately after the shooting, and that at that time the wife of the insured said that he had been suffering during the night; that he had gallstones and had been troubled with them that night, and he did not sleep the first part of the night because he was sick with gallstones; that he had been up once in the night; that he had been troubled with gallstones for quite a while, and that she was going to get some hot water for him to relieve him that morning. She said she wished that he had had the operation, because it would have relieved him; that he did not care to have the operation, did not want to have an operation, he dreaded an operation, and he was afraid of an operating table; he was afraid that he would never come off alive if he got there; that she said the insured was not feeling well when he went upstairs and was complaining of the old trouble.

Another witness testified that she was present at the Balous home the morning of the shooting; that at said time the wife of the insured said that he was bothered with gallstones, and talked of an operation, and that he feared it.

Another witness testified that he was at the house the morning of the shooting, and that the wife of the insured said that he had complained of ill health, and, the night before the shooting, he had been suffering some and had been complaining some that morning; that she said he complained of his headache or stomach trouble, or pain he had some place, and she was going to fix up some hot water for him. She said that he had been examined and that they had pronounced an operation was necessary for gallstones, as the witness remembered it, and that the insured had appeared hostile to the operation.

The wife of the insured testified that she and her husband had breakfast together the morning of the shooting near 8 o'clock, after the daughter had gone to school; that she did not see anything unusual in his actions or appearance; that when she got up to wash the dishes, he came to the sink and said that he would dry them for her, and she replied that she could get along with the dishes and for him to go upstairs and lie down, and that he went upstairs; that in two or three minutes she heard the shot. She said he frequently went upstairs after breakfast and lay down when he had been out late at night.

Immediately after the shooting the wife ran upstairs and found the insured lying on the floor. The evidence shows that the bedroom in which the insured was shot contained a dresser with a large mirror in it. This dresser was located across the southeast corner of the room, and there was a bed on the west side of the room. The insured was found lying on the floor in this bedroom, in front of the dresser, with his feet toward it and his head toward the northwest. There was a gunshot wound in the head of the insured on the right side, located as being above the right ear, near the hair line, about the middle of the right side of the head, near the temple or top of the temple, a little to the front of...