Grey v. Independent Order of Foresters
| Decision Date | 26 June 1917 |
| Docket Number | 1893 |
| Citation | 196 S.W. 779 |
| Parties | GREY v. INDEPENDENT ORDER OF FORESTERS |
| Court | Missouri Court of Appeals |
NOT FINAL UNTIL EXPIRATION OF THE REHEARING PERIOD.
Rehearing Denied July 24, 1917.
Appeal from Circuit Court, Newton County; Carr McNatt, Judge.
Action by Mary Jane Ireland against the Independent Order of Foresters wherein Fannie A. Grey was substituted as plaintiff. Judgment for plaintiff, and both parties appeal.
Reversed and remanded.
T. J McComb, of Oklahoma City, Okl., George Hubbert, of Neosho and Stephen C. Treadwell, of Oklahoma City, Okl., for plaintiff.
R. P. & C. B. Williams, of St. Louis, for defendant.
This suit was begun in the name of Mary Jane Ireland as plaintiff against defendant upon a benefit certificate issued to William M. Ireland in the sum of $ 5,000, and in which Mary Jane Ireland, the mother of the assured, was named as beneficiary. The defendant was at that time and still is a corporation incorporated under the laws of Canada, with its chief place of business at Toronto. Mary Jane Ireland, the named beneficiary, then lived at Toronto. The benefit certificate was issued and delivered at Toronto, Canada, and was payable there, and hence was a Canadian contract. The insured died at Kansas City, Mo., and the proofs of death gave the cause as suicide. The benefit certificate contained provisions by which in case of death by suicide only a ratable portion of the face of the certificate would be paid; the amount depending on the time the benefit certificate had been in force. Under that provision the amount due on this benefit certificate in case of death by suicide would be $ 2,250.
This suit was instituted March 6, 1915, and service had on the defendant by delivering copy of petition and summons to the state superintendent of insurance March 15, 1915.
On July 7, 1915, defendant filed answer which was a general denial.
On October 11, 1915, Fannie A. Grey, the present plaintiff, was substituted as a party plaintiff in the place of Mary Jane Ireland, the original plaintiff, for the reason that the benefit certificate sued on had been assigned to her. This assignment was completed April 7, 1915.
On March 22, 1015, defendant began a suit in equity in the Supreme Court of the Province of Ontario, Canada, at Toronto, against Mary Jane Ireland, alleging that the benefit certificate was issued at Toronto, and that the beneficiary, Mary Jane Ireland, lived at Toronto, that she bad begun a suit in Newton county. Mo., on the benefit certificate and was seeking to recover thereon the sum of $ 5,000, alleged the death of the insured by suicide, and that by reason of that fact the amount due under the benefit certificate was $ 2,250 only, and asked permission to pay that amount into court for her benefit and to be discharged with costs, and that she be required to deliver up the benefit certificate for cancellation. (It may be noted here that the benefit certificate was then on file with the petition in this case in the Newton county circuit court.)
Service was had upon Mary Jane Ireland in the Canada suit on March 24, 1915. No defense was made to this action, and judgment was rendered therein on May 10, 1915, directing the company to pay into court $ 2,250, and adjudging that on doing so it should be discharged from all liability under the benefit certificate, and enjoined Mary Jane Ireland, the defendant in that suit, her servants and agents, from proceeding with this suit in Newton county, Mo., or in any court other than a court of competent jurisdiction within the province of Ontario, and that on payment of $ 2,250 into court said Mary Jane Ireland should deliver up the benefit certificate to be canceled.
After Fannie A. Grey had been substituted as party plaintiff in this case, an amended petition was filed, and answer thereto was filed in which the Canada Judgment was pleaded in bar, also alleged death by suicide, and that by reason of that fact the defendant could only be liable for $ 2,250, and also alleged that the present plaintiff, Fannie A. Grey, knew of the pendency of the action in Canada and took no steps to defend it, but permitted it to go to Judgment and the orders to be made therein and the money paid into court without giving any notice to the company that she claimed any interest in the fund.
A replication was filed denying that the insured committed suicide, and alleged that, while Mary Jane Ireland was named beneficiary in the benefit certificate, yet it was agreed between her and the Insured and Fannie A. Grey at the time that said Mary Jane Ireland should hold the same in trust for Fannie A. Grey, alleged that the Newton county circuit court first acquired Jurisdiction of the cause, and that the Canadian court could not oust that Jurisdiction. and that the suit in Canada was begun for the sole purpose of restraining Mary Jane Ireland from prosecuting this action in the Newton county circuit court Several other things were alleged in the replication which we do not deem necessary to set out That part of the petition alleging the interest of T. J. McComb was stricken out and the cause proceeded with Fannie A. Grey as the only plaintiff.
At the trial the Judgment of the Canadian court was disregarded, but the court held that the suicide statute did not apply, and Judgment went for plaintiff for $ 2,250, the amount due by the terms of the policy if death occurred by suicide.
Both parties appealed, the plaintiff contending that she should have recovered $ 5,000, and defendant contending that the Canada judgment should have been recognized, and judgment entered for defendant.
Plaintiff contends that error was committed by the trial court in refusing to permit plaintiff to explain the proofs of death which attributed the death of insured to suicide and to show that death did not result from suicide, and cites many authorities to sustain the position that proofs of death do not always bind absolutely, but may be explained, and that a party may show that as a matter of fact the death did not result from suicide. We agree that in a proper case that may be done, and are of the opinion that it should have been permitted in this case, but we fail to find in this record anything to show that the court refused plaintiff permission to explain and to show that as a matter of fact the death was not from suicide. The court excluded some evidence offered by plaintiff as to what she learned as the result of an investigation made by her, but that was properly excluded because calling for a conclusion. Plaintiff was permitted to testify how the death proofs were made out and that they were made on hearsay, and not on personal knowledge.
The court refused to submit to the jury the question of death by suicide, and this is assigned as error by plaintiff.
The death proofs showed death by suicide, and that made a prima facie case for defendant on that question and cast the burden on plaintiff to show that death did not result from suicide, or to explain the statement therein contained that death did result from suicide in such a way as to destroy the effect of it as an admission against interest, and thus open up the question and permit it to be determined on the proof at the trial. Ordinarily the plaintiff makes a prima fade case by the introduction of the certificate and proof of the death of the insured. When, as in this case, the defendant relies upon suicide as a defense either total or partial, it makes a prima facie case sustaining that defense by introducing the proofs of death furnished the company when these proofs show death by suicide, and if these death proofs are not explained or contradicted by plaintiff, a verdict for defendant should he directed.
If, however, the plaintiff at the trial explains now the statement in the proofs of loss that deceased came to his death by suicide were placed in them, and this is done in such a way as to show that as a matter of right and justice that statement should not be held as binding on the beneficiary, then its value as an admission against interest is nullified, and as far as that question is concerned the parties an reverted to their original positions, and the burden of proof again rests where it would have been had there been no statement in the proofs of death indicating that death came from suicide. Bamberge v. Supreme Tribe of Ben Har, 159 Mo.App. 102, 139 S.W. 235; Frasier v. Met. Ins. Co., 161 Ho. App. 709, 716-717, 161 Mo.App. 709, 141 S.W. 936; Coscarella v. Insurance Co., 175 Mo.App. 130, 137, 157 S.W. 873; Castens v. Supreme Lodge, Knights and Ladies of Honor, 190 Mo.App. 57, 66, 175 S.W. 264; Stephens v. Met. Life Ins. Co., 190 Mo.App. 673, 680, 176 S.W. 253.
It was shown by plaintiff that at the time the death proofs were made out the named beneficiary, Mary Jane Ireland, was a resident of Toronto, Canada, and had no personal knowledge of the cause of the insured's death. The blanks for proof were furnished her there and by her sent to plaintiff Fannie A. Grey, and these blanks were filled in by her and sent back to Mrs. Ireland, who signed and swore to them. The plaintiff Fannie A. Grey had no personal knowledge of the cause of death of the insured, but in stating in the blank proofs that it was suicide by cyanide poison she relied on newspaper reports and the statement of the coroner. The coroner had not held an inquest for the reason that he deemed it a plain case of suicide and made an entry to that effect in his record. A copy of this record accompanied the proofs of death and was referred to therein as the reason for stating that the death was caused by cyanide poison, self-administered with suicidal Intent. The...
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... ... jurisdiction. State ex rel. v. Reynolds, 209 Mo ... 161; Grey v. Independent Order of Forresters, 196 ... S.W. 779. (5) Jurisdiction ... ...