Johns v. Nw. Mut. Relief Ass'n

• Decision Date: 15 May 1895
• Citation: 90 Wis. 332,63 N.W. 276
• Parties: JOHNS ET AL. v. NORTHWESTERN MUTUAL RELIEF ASS'N.
• Court: Wisconsin Supreme Court

90 Wis. 332

63 N.W. 276

JOHNS ET AL.

v.NORTHWESTERN MUTUAL RELIEF ASS'N.

Supreme Court of Wisconsin.

May 15, 1895.

Appeal from circuit court, Waukesha county; George Clementson, Judge.

Action by Elizabeth Johns and others against the Northwestern Mutual Relief Association on a life insurance policy. From a judgment for plaintiffs, defendant appeals. Reversed.

It appears from the record: That Hubert Johns entered into a contract of insurance with the defendant in 1885. That said contract continued in force until October 1, 1890, when, by agreement of the parties, the old certificate of insurance was surrendered, and a new one issued, dated on that day, to the effect, wherein and whereby, in consideration of the payment of assessments therein mentioned upon maturity of said certificate, and within 90 days after due proof and allowance of such claim upon presentation and surrender thereof, the defendant would pay the said Hubert Johns, or, in case of his death, the beneficiaries therein named, if living, as therein mentioned, provided that said disability benefit should only apply and be paid in cases where the injury therein provided and contemplated should result from and be brought about by some external cause of accident, and not by disease, or any voluntary act of the member. That the same was to mature by limitation March 14, 1914, and then be paid as therein prescribed. That in case of maturity by death, 80 per cent. of an assessment of one table rate from each member, levied and collected therefor and applicable thereto, not exceeding $4,000, less any payment before made on account of maturity by disability or limitation, or any indebtedness due or accrued to the association from such member. That said certificate was so issued, and accepted subject to the conditions, rules, and regulations printed on the back thereof. That among the rules and regulations so indorsed thereon is the following, to wit: “Suicide or self-destruction of the member herein named, whether voluntary or involuntary, sane or insane at the time thereof, is not a risk assumed by this association; provided, however, that in case of self-destruction the association, within 90 days after due proof and allowance of such claim, and upon presentation of this certificate, shall return to the beneficiaries herein named 80 per cent. of all assessments paid by such member; provided, also, that the amount so returned shall not exceed 80 per cent. of an assessment levied and collected therefor and applicable to the payment thereof.” That June 1, 1893, the said Hubert Johns came to his death by drowning in a cistern. That September 23, 1893, this action was commenced in equity to enforce an assessment to pay such loss. That the complaint alleges full performance on the part of said assured. The answer alleges, in effect, the rule relieving the defendant from liability in case of suicide or self-destruction, and that Hubert Johns came to his death by suicide or self-destruction. At the close of the trial the court found, in effect, the facts stated, and that Hubert Johns got into the cistern in which he was found dead accidentally, and did not commit suicide, and did not take his own life, either voluntarily or involuntarily. As conclusions of law the court found that the plaintiffs were entitled to judgment, ordering and directing the defendant to levy, assess, and collect and pay to the beneficiaries above named (the plaintiffs herein) 80 per cent. of the assessment so made, not to exceed the sum of $4,000, with interest thereon from September 20, 1893, and ordered judgment accordingly. From the judgment so entered thereon the defendant brings this appeal.T. W. Haight and H. W. Chynoweth, for appellant.

Ryan & Merton, for respondents.

CASSODAY, J. (after stating the facts).

It appears that at the time of his death Hubert was a tailor by trade, and was living with his second wife; that he had two children by his former wife,--a daughter, who had been absent from home for a long time; and a son, 13 or...