Harrington v. Mutual Life Insurance Company of New York, a Corporation

• Decision Date: 21 April 1911
• Citation: 131 N.W. 246,21 N.D. 447
• Court: North Dakota Supreme Court

131 N.W. 246

21 N.D. 447

HATTIE E. HARRINGTON v. MUTUAL LIFE INSURANCE COMPANY OF NEW YORK, a Corporation

Supreme Court of North Dakota

April 21, 1911

Appeal from District Court, Grand Forks county; Templeton, J.

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.

The policy evidences the contents. New York L. Ins. Co. v McMaster, 30 C. C. A. 532, 57 U.S. App. 638, 87 F. 63; McMaster v. New York L. Ins. Co. 40 C. C. A. 119, 99 F. 856; Logan v. Provident Sav. Life Assur. Soc. 57 W.Va. 384, 50 S.E. 529; Hutson v. Jenson, 110 Wis. 26, 85 N.W. 689.

The word "issued" as applied to the policy means the beginning of contractual relations under it. Coley v Lewis, 91 N.C. 23; 4 Words & Phrases, p. 3781; Corning v. Meade County, 42 C. C. A. 154, 102 F. 57; Folks v. Yost, 54 Mo.App. 59; Homestead F. Ins. Co. v. Ison, 110 Va. 18, 65 S.E. 463; Kansas Mut. L. Ins. Co. v. Coalson, 22 Tex. Civ. App. 64, 54 S.W. 388; Sisk v. Citizens' Ins. Co. 16 Ind.App. 565, 45 N.E. 804; Orcutt v. Moore, 134 Mass. 52, 45 Am. Rep. 278; Styles v. Wardle, 4 Barn. & C. 908, 7 Dowl. & R. 507, 4 L. J. K. B. 81, 28 Revised Rep. 501; Houston, E. & W. T. R. Co. v. Keller, 90 Tex. 214, 37 S.W. 1062; Logsdon v. Supreme Lodge, F. U. 34 Wash. 666, 76 P. 292; Pease v. Ritchie, 132 Ill. 638, 8 L. R. A. 566, 24 N.E. 433; Spencer v. Myers, 73 Hun, 274, 26 N.Y.S. 371.

Suicide contemplated by assured, when risk is assumed, renders the insurer not liable. Hopkins v. Northwestern Life Assur. Co. 94 F. 729; Weber v. Supreme Tent, K. M. 172 N.Y. 490, 92 Am. St. Rep. 753, 65 N.E. 258; Shipman v. Protected Home Circle, 174 N.Y. 398, 63 L.R.A. 347, 67 N.E. 83; Davis v. Supreme Council R. A. 195 Mass. 402, 10 L.R.A. (N.S.) 722, 81 N.E. 294, 11 A. & E. Ann. Cas. 777; May, Ins. 2d ed. p. 443; Mutual L. Ins. Co. v. Armstrong, 117 U.S. 591, 29 L.Ed. 997, 6 S.Ct. 877; Borradaile v. Hunter, 5 Mann. & G. 653, 5 Scott, N. R. 418, 12 L. J. C. P. N. S. 225, 7 Jur. 443; Blackstone v. Standard Life & Acci. Ins. Co. 74 Mich. 593, 3 L.R.A. 486, 42 N.W. 156; Hatch v. Mutual L. Ins. Co. 120 Mass. 550, 21 Am. Rep. 541; Ritter v. Mutual L. Ins. Co. 169 U.S. 139, 42 L.Ed. 693, 18 S.Ct. 300; Burt v. Union Cent. L. Ins. Co. 187 U.S. 362, 47 L.Ed. 216, 23 S.Ct. 139; Supreme Commandery K. G. R. v. Ainsworth, 71 Ala. 436, 46 Am. Rep. 332; Amicable Soc. v. Bolland, 4 Bligh, N. R. 211, 2 Dow & C. 1.

Guy C. H. Corliss, for respondent.

The year's period began with the date of the policy. Gage v. McCord, 5 Ariz. 227, 51 P. 977; Bement v. Trenton Locomotive & Mach. Mfg. Co. 32 N.J.L. 513.

Doubt as to construction of a policy is resolved against the insurer who selected the language. 25 Cyc. Law & Proc. p. 739; Mareck v. Mutual Reserve Fund Life Asso. 62 Minn. 39, 54 Am. St. Rep. 613, 64 N.W. 68; Grier v. Mutual L. Ins. Co. 132 N.C. 542, 44 S.E. 28; Franklin Ins. Co. v. Villeneuve, 25 Tex. Civ. App. 356, 60 S.W. 1014; Mutual Reserve Fund Life Asso. v. Payne, Tex. Civ. App. , 32 S.W. 1063; Patterson v. Natural Premium Mut. L. Ins. Co. 100 Wis. 118, 42 L.R.A. 253, 69 Am. St. Rep. 899, 75 N.W. 980; Rayburn v. Pennsylvania Casualty Co. 138 N.C. 379, 107 Am. St. Rep. 548, 50 S.E. 762; Mutual Reserved Fund Life Asso. v. Austin, 6 L.R.A. (N.S.) 1064, 73 C. C. A. 498, 142 F. 398.

As to contractual purposes, recital of payment in a policy is binding upon the insurer. Rev. Codes 1905, § 5948; Grier v. Mutual L. Ins. Co. 132 N.C. 542, 44 S.E. 28; Kendrick v. Mutual Ben. L. Ins. Co. 124 N.C. 315, 70 Am. St. Rep. 592, 32 S.E. 728.

An insurance company may date back its policy, receive pay for the elapsed period, and deem it in force from such date. 2 May, Ins. Sec. 400; Rayburn v. Pennsylvania Casualty Co. 138 N.C. 379, 107 Am. St. Rep. 548, 50 S.E. 762; 25 Cyc. Law & Proc. p. 742.

Beneficiary is not affected by the secret suicidal purpose of assured. Patterson v. Natural Premium Mut. L. Ins. Co. 100 Wis. 118, 42 L.R.A. 253, 69 Am. St. Rep. 899, 75 N.W. 980; 25 Cyc. Law & Proc. p. 881; Cases in note to 8 L.R.A. (N.S.) 1124; Supreme Conclave I. O. H. v. Miles, 92 Md. 613, 84 Am. St. Rep. 528, 48 A. 845; Lange v. Royal Highlanders, 75 Neb. 188, 10 L.R.A. (N.S.) 666, 121 Am. St. Rep. 786, 106 N.W. 224, 110 N.W. 1110.

The motive with which an act, otherwise lawful, is committed, does not render such lawful act unlawful. Boyson v. Thorn, 98 Cal. 578, 21 L.R.A. 233, 33 P. 492; Fisher v. Fielding, 67 Conn. 91, 32 L.R.A. 236, 34 A. 714; Phelps v. Nowlen, 72 N.Y. 39, 28 Am. Rep. 93; Frazier v. Brown, 12 Ohio St. 294; Chatfield v. Wilson, 28 Vt. 49; People ex rel. Tibbits v. Canal Appraisers, 13 Wend. 360.

BURR, District Judge. Honorable A. G. BURR, Judge of the Ninth Judicial District, sitting with the court by request.

OPINION

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 9th, 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 9th, 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 9th, 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 forty-two years, to $ 16.04; and the semiannual premium, to $ 8.34; but that the premium rate at the age of forty-three 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 9th, 1908, to November 9th, 1908, and the further sum of $ 8.34, as...