Krug v. Lincoln National Life Insurance Company, 16524.

• Decision Date: 10 June 1957
• Docket Number: No. 16524.,16524.
• Citation: 245 F.2d 848
• Parties: Alice Margaret KRUG, Appellant, v. The LINCOLN NATIONAL LIFE INSURANCE COMPANY, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

245 F.2d 848 (1957)

Alice Margaret KRUG, Appellant, v. The LINCOLN NATIONAL LIFE INSURANCE COMPANY, Appellee.

No. 16524.

United States Court of Appeals Fifth Circuit.

June 10, 1957.

Malcolm McDermott, McAllen, Tex., William E. York, James C. Abbott, McAllen, Tex., for appellant.

Harry L. Hall, Mission, Tex., Strickland, Wilkins, Hall & Mills, E. G. Hall, Mission, Tex., for appellee.

Before HUTCHESON, Chief Judge, and TUTTLE and JONES, Circuit Judges.

HUTCHESON, Chief Judge.

This cause began with the usual and ordinary allegations in a usual and ordinary suit upon a usual and ordinary life insurance policy containing the usual ordinary suicide clause.¹ As thus begun, it presented the usual and ordinary issue of fact where the clause is, as here, relied on as a defense.²

On June 18, the date the cause was set for trial, plaintiff, moving for judgment on the ground that the suicide clause was void since it never had been approved by the Texas Board of Insurance Commissioners and such approval was required by Art. 3.45, subd. 3 of the Texas Insurance Code, V.A.T.S., injected into the cause a new and paramount issue which, dominating the proceedings below, has become the sole issue on this appeal.

A certificate of the chairman of the board attached to the motion certified: that the defendant's specimen policy form 33-10-52 was on file in the office; and that there was no reference to the form or any part of it in the Minutes or other records of board action.

Defendant's objection to the late filing of the motion, on the ground that it had been stipulated on pretrial that the only issue in the case was suicide, was overruled, and the motion was carried along with the case with the right to counsel to offer testimony on the motion if necessary.

The issue of whether Krug had committed suicide was then tried and submitted to a jury and answered in the affirmative by it, and thereafter plaintiff moved for judgment notwithstanding the verdict on the grounds: (1) of the insufficiency of evidence to overcome the presumption against suicide; and (2) that the suicide clause to be valid had to be, and was not, approved by the board, and it was, therefore, void.

The district judge holding that the evidence fully supported, if indeed it did not require, the verdict and that the clause was valid, denied the motion.

Concluding that if the statute invoked by plaintiff requires approval of the suicide clause by the board, approval must be given by the board as in the case of the Railroad Commission and other state agencies,³ and that on the evidence the board, as such, did not consider or approve the form of a policy containing the suicide clause but simply permitted it to be filed pursuant to the practice of the board after it had been examined by a clerk, the district judge agreed with plaintiff's contention that the evidence did not show board approval. He disagreed, however, with her primary contention that the statute requires board approval and that failure to secure it rendered the clause void, and in an opinion setting out the statute and correctly, we think, giving his reasons⁴ for so doing, he concluded that the clause had been authorized by statute in 1909 and had continued ever since to be valid, and that the petitioner's attack upon it should be rejected. He entered judgment accordingly, and this appeal followed.

Abandoning here her contention that the verdict of the jury that Krug had committed suicide must be set aside, and directing her whole attack upon the suicide clause as unauthorized because it must have had, and did not have, formal board approval, plaintiff's counsel struggles to maintain a position which is in the teeth of every act and fact in the record and in the history of life insurance policies in this state for the last half century, and which, if sustained, would invalidate as to the clause in question the thousands of policies heretofore issued and now issued and outstanding.

Apparently undaunted by the magnitude of her task and vigorously insisting that a proper construction of the statute under the principles of statutory construction requires a rejection of the district judge's view that the approval it refers to is limited to the then added provision for death of the insured resulting from aviation activities, plaintiff, invoking all the aids to stautory construction which she finds helpful and citing authorities which she claims support her view, makes a valiant effort to carry her heavy burden.

On its part, appellee, while agreeing with the view of the district judge that the statutes do not require approval by the board of suicide clauses, that they are made lawful by the statute and stand upon statutory authorization, insists further that if wrong in this and the invoked provision of the act does require board approval, such approval is not a formal and quasi-judicial, but an administrative, one. So insisting and pointing to the undisputed facts of record, that over the years the form in general has been approved by the Insurance Department, and that the thousands of policies containing the clause have been accepted for filing and filed with the department, it urges upon us that since it is uncontradicted that copies of this policy and all others containing the same provision have been filed with the board and endorsed as acceptable to it, if any requirement of approval exists, it has been complied with.

Pointing out that it is inherent in all of the Texas decisions on the subject that the public policy of the State as declared by the Legislature, authorizes the suicide clause and that the only concern of the Legislature was to insure that the limitations upon full liability would be so clearly, concisely, and separately stated in the policy as not to mislead the insured, appellee urges upon us that the clause in question meets all such tests. In substance it is in almost the identical statutory language, and the policy clearly meets the test as to form provided by the Life Policy Form Manual adopted and issued as the official act of the Board of Insurance Commissioners on November 16, 1944. While, therefore, strongly urging that the district judge was right in holding that Board approval of the clause, in the sense in which he used the phrase, was not required, appellee pointing out that the Legislature has declared the public policy in Texas with reference to the suicide clause by specifically authorizing the insertion of such a clause in the policy, and that the Board of Insurance Commissioners cannot lawfully either add to or subtract from the substance of the authority so granted, but can only administratively approve or disapprove a particular form, vigorously asserts its contention that the only function which the Board has with reference to such a clause is an administrative one, and it has fully performed that function in repect to it.

Calling to our attention: that approximately 10,000 life policy forms alone are submitted to the State Board of Insurance Commissioners annually; it urges upon us that if the State Board were required as a board to give a quasi-judicial approval of each of said policy forms, it would be impossible for it to do so, while, if as the Board has over the years construed its function in respect to policy forms including the suicide clause, it is an administrative and ministerial one, the performance of which can be delegated, the consideration and approval of proposed forms would be, and is entirely feasible. So urging, it insists that by the adoption by formal action incorporated in the official minutes of the Board of Commissioners on November 16, 1944, of the Life Policy Form Manual, containing a permitted suicide clause and the reception and approval of particular policies by the Board acting through delegates who were authorized to place the Department's filing stamp on duplicates of policy forms submitted by the various companies, the Board properly conceived and properly discharged its function. Pointing to the undisputed facts of record, that policy form 33-10-52 here involved was mailed by appellee to George Butler, Chairman of the Board in Austin with its letter of 10-29-52, with the request that it be approved; that such letter was received by Mr. Butler; that appearing in its lower right hand corner is the file mark of the Department of Insurance dated 10-30-52; and that it was testified to without conflict that the file mark indicates that the policy form referred to in the letter had been filed and the issuance of policies on such forms authorized in Texas; appellee urges upon us that appellant's attack upon the suicide clause as void is entirely without substance.

We find ourselves in complete agreement with appellee's contentions: (1) that the district judge was right in his view that no Board approval, in the sense in which the judge used that term, was required; and (2) that if administrative approval was required, it is difficult to see what more could...