Harrington v. Mut. Life Ins. Co. of N.Y.

• Decision Date: 21 April 1911
• Citation: 131 N.W. 246,21 N.D. 447
• Parties: HARRINGTON v. MUTUAL LIFE INS. CO. OF NEW YORK.
• Court: North Dakota Supreme Court

21 N.D. 447

131 N.W. 246

HARRINGTON

v.MUTUAL LIFE INS. CO. OF NEW YORK.

Supreme Court of North Dakota.

April 21, 1911.

Syllabus by the Court.

Construing section 5948 of the Revised Codes of 1905, held, that the company cannot be permitted to show that the actual date of the issuance of a policy of life insurance was of a later date than the date recited in the contract, where the policy contains an acknowledgment of the receipt of the premium.

In such case the date of the policy as specified in the contract being binding on the company, held, that under the provisions of section 6064 of the Revised Codes of 1905, the defense that the insured committed suicide cannot be set up, when suicide occurs after the expiration of one year from the date of the policy.

Where the insured commits suicide while sane, after the expiration of one year from the date of the policy, the company is liable for the amount of the policy, even though it appeared that the act of the suicide was premeditated before the expiration of one year from the date of the policy, and even though the date of the liability of the company is fixed by the voluntary act of the insured, this being one of the risks assumed by the company, whereas, in this case the policy contains a provision that the company shall not be liable in the event of the insured's death by his own act, whether sane or insane, during the period of one year after the issuance of the policy.

Appeal from District Court, Grand Forks County; Templeton, Judge.

Action by Hattie E. Harrington against the Mutual Life Insurance Company of New York. Judgment for plaintiff, and defendant appeals. Affirmed.Ball, Watson, Young & Lawrence, for appellant. Guy C. H. Corliss, for respondent.

BURR, District Judge.

This action involves a question of the liability of the defendant herein upon a life insurance policy issued by the defendant to one Charles E. Rich, in which policy the plaintiff herein is named as beneficiary. The policy is dated May 9, 1908, and is in the sum of $1,000. It is not necessary to set forth the pleadings in detail, as almost all of the facts are admitted by the parties. The answer of the defendant, however, in three paragraphs thereof, sets forth statements which the trial court failed to find as facts in this case, which failure is assigned as error. These paragraphs are as follows:

Paragraph 5: “Defendant further alleges that said Charles E. Rich committed suicide on the 11th day of May, 1909, and, as a result of said act on his part, died on said 11th day of May, 1909; that said act of suicide was committed while said Charles E. Rich was sane and was with the deliberate intention of taking his own life, and was committed by said Charles E. Rich on that particular date in contemplation of the expiration of one year from the date of said policy; and for the purpose of creating a liability upon the defendant under the terms and conditions of said policy of insurance; that said Charles E. Rich intentionally, and for the fraudulent purpose of creating a liability against the said defendant, waited until the expiration of one year from the date of said policy for the purpose of creating a liability thereunder against the defendant.”

Paragraph 7: “Defendant further alleges that the period of one year from the date of the execution and signing of the said policy by the defendant, or from the date of the said application of the said Charles E. Rich, did not expire until the 19th day of May, 1909, eight days subsequent to the date of the suicide of the said Charles E. Rich.”

Paragraph 8: “That the said defendant received no benefit nor consideration for the affixing of the date of said policy of insurance as of a date previous to the actual signing and execution thereof.”

Among the undisputed facts in this case, we find: That the insured was born November 13, 1865; premium based on age; that on the 18th day of May, 1908, he made his written application to the defendant for a policy of life insurance in the sum of $1.000, and that said application was in due course forwarded to the head office of the defendant, and was duly accepted by the defendant, and the defendant duly issued and delivered to the said Charles E. Rich the said insurance policy, which policy was delivered on or before the 1st day of July, 1908; that for the conduct of its business defendant from time to time “issued rules and regulations and instructions for the local agents, to guide them in the reception of applications,” and at the time this application was received one of the said rules of the said company in force was as follows: “Insurance Age Dating Back. The insurance age is determined by the birthday of the insured closest to the date of the policy (which is the same as that of the examination). Where the age has recently changed, it is sometimes possible, by the applicant's request embodied in the application, to have the policy dated back a few days in order to give the applicant the benefit of the rate of a younger age;” that the written application made by the said Charles E. Rich, as aforesaid, contained the following statement and request: “The premiums are to be paid semiannually. First premium, May 9, 1908.” Also: “It is hereby warranted and agreed that I will not die by my own hand, whether sane or insane, during the period of one year next following the said date of issue;” that the said policy of insurance, delivered to and accepted by the said Charles E. Rich, contained the following clause and addition: “Suicide. The company shall not be liable hereunder in the event of the insurer's death by his own hand, whether sane or insane, during the period of one year after the issuance of this policy, as set forth in the provisions of the application indorsed hereon or attached hereto;” that the said policy contained the following clause and condition: “This policy and the application heretofore, a copy of which is indorsed hereon and attached hereto, constitute the entire contract between the parties hereto;” that the defendant dated the said policy of insurance as of the date, May 9, 1908, and by reason thereof the insured received the benefit of a lower premium, and that said lower premium amounted annually, when at the age of 42 years, to $16.04, and the semiannual premium to $8.34; but that the premium rate at the age of 43 is $16.30 for the annual premium and $8.58 for the semiannual premium; that the defendant accepted from the said Charles E. Rich the semiannual premium of $8.34 as a premium upon the said policy from May 9, 1908, to November 9, 1908, and the further sum of $8.34, as the semiannual premium on said policy from November 9, 1908, to May 9, 1909; that on the 10th day of May, 1909, said Charles E. Rich paid to defendant the sum of $8.58, as and for the semiannual premium upon the said insurance policy for the period from May 9, 1909, to November 9, 1909, and the defendant duly issued and delivered to the said Charles E. Rich its receipt for the said semiannual premium as follows: “The Mutual Life Insurance Company of New York hereby acknowledge receipt of premiums on said policy. Policy No. 1737639. Premium $8.58 for one half year, due May 9th, 1909.” “Countersigned May 10, 1909, at Fargo, No. Dak. W. A. Smith, Manager, per J. C. Whitney, Agency Cashier. W. J. Easton, Secretary.”

That the provisions of the said life insurance policy are all in printed language, prepared by the defendant, and that the warranty on the part of the insured that he would not commit suicide during the period stated was in printed language, prepared by the defendant in making out its form of application for insurance; that the said Charles E. Rich committed suicide on the 11th day of May, 1909, dying on the said date; that the said Charles E. Rich, at the time that he committed suicide, was sane; that, according to the terms of the policy, 30 days' grace were allowed the insured in which to pay any premium after the first premium, and all premiums were payable in advance at the home office of the defendant, or to any agent of the company, upon delivery, on or before date due, of a receipt signed by the secretary of the company, or other executive officer, and countersigned by said agent; that the plaintiff herein is the sister of the insured; that after the death of the insured the said plaintiff made due proof of the death of the said Charles E. Rich; said proof was duly received and accepted by the defendant as sufficient proof of his death on the 4th day of June, 1909, and was passed upon by the defendant at that time; that the defendant disclaimed any liability under the terms of said policy, and refused to pay the insurance to the plaintiff, upon the ground that the defendant was not liable, because that the insured committed suicide “during the period of one year after the issuance of the said policy as set forth in the provision of the application and policy,” and for grounds other than sufficiency of the proofs of loss; that this action was commenced on or about September 1, 1909.

In the trial of the case the defendant submitted the testimony of one E. L. Richter, who testified in substance that he had been acquainted with the insured for between 25 and 30 years, and that witness and insured were good friends, which friendship continued up to the day of his death; that on the 27th day of April, 1909, witness had a conversation with the insured at the office of the witness, at Larimore, at which time they were discussing the financial affairs of the insured, and some life insurance policies which the insured had, payable to his daughter, Hattie E. Rich; that the insured said to him that he wanted to raise money on his life insurance policies, in order to remedy his financial difficulties; that at said time the witness and the insured discussed the suicide clause in the policies, and the insured stated that the said clause ran out somewhere between the 7th and 9th of May,...