McAlpine v. Fid. & Cas. Co. of N.Y.

• Decision Date: 28 July 1916
• Docket Number: No. 19653[74].,19653[74].
• Citation: 134 Minn. 192,158 N.W. 967
• Court: Minnesota Supreme Court
• Parties: McALPINE v. FIDELITY & CASUALTY CO. OF NEW YORK.

134 Minn. 192

158 N.W. 967

McALPINE

v.FIDELITY & CASUALTY CO. OF NEW YORK.

No. 19653[74].

Supreme Court of Minnesota.

July 28, 1916.

Appeal from District Court, St. Louis County; Wm. A. Cant, Judge.

Action by Sarah McAlpine against the Fidelity & Casualty Company of New York. From an order granting a new trial, after verdict for defendant, defendant appeals. Reversed.

Syllabus by the Court

Upon the appeal of the defendant from an order granting the plaintiff's motion for a new trial, after verdict for the defendant, where the motion was granted because of errors of law occurring at the trial, and the order so stated, the plaintiff may support the order by showing other errors, if properly raised, than the specific ones because of which the new trial was granted; but upon such appeal the plaintiff cannot question the sufficiency of the evidence to sustain the verdict.

In an action on an accident policy, the provisions of Rev. Laws 1905, § 1623 (Gen. St. 1913, § 3300), relative to misrepresentations by the insured, control, and not the provisions of Rev. Laws 1905, § 1693 (Gen. St. 1913, § 3467), relative to misstatements as to age, physical condition, and family history in an application where the policy is issued without previous medical examination or without the knowledge or consent of the insured, the policy having been written and the death claimed to be accidental having occurred prior to the going into effect of Laws 1913, c. 156 (Gen. St. 1913, §§ 3522-3535), section 6 of which provides what shall be the effect of a false statement in an application for an accident policy.

In an action on an accident policy for death resulting through accidental means, the defendant alleged that the death was caused by suicide, and, further, that it was caused by the beneficiary. The court denied the plaintiff's motion that the defendant be required to elect upon which claim it would rely upon the ground that the two were inconsistent. The ruling was correct. The general rule relative to inconsistent defenses will not be applied in a case like this, so as to prevent a meritorious defense or work manifest injustice. In an action on an accident policy the issue is upon the question of accident, and the affirmative is upon the plaintiff. Such claims as those named may be shown under a general denial in disproof of accident. They are not affirmative defenses like misrepresentation or breach of warranty, nor are they affirmative defenses based upon an exception, as, for instance, suicide in a straight-life policy. The affirmative issue, upon which the right of recovery rests, is upon the fact of accident.

In such action the burden of proving that the death of the insured was caused by a third person, not the beneficiary, this constituting an accident within the meaning of the policy, is upon the plaintiff.

There were no errors at the trial and a new trial should not have been granted. Abbott, MacPherran, Lewis & Gilbert and Theo. Hollister, all of Duluth, and Monte Appel and Briggs, Thygeson & Everall, all of St. Paul, for appellant.

A. E. McManus, of Duluth, and W. M. Steele, of Superior, Wis., for respondent.

DIBELL, C.

Action on a policy of accident insurance on the life of John McAlpine in which his wife, the plaintiff, was the beneficiary. There was a verdict for the defendant. The court granted the plaintiff's motion for a new trial. The defendant appeals from the order granting it.

The motion for a new trial was based upon several grounds, including that of the insufficiency of the evidence to sustain the verdict. The court granted the motion upon the ground that it erred in charging the jury relative to the effect upon the policy of a misrepresentation or misstatement by the insured of his physical condition. In its order it stated that it was granted exclusively upon the ground of errors occurring at the trial. The following questions are presented:

(1) Whether on this appeal the plaintiff may support the order by showing errors, properly raised, other than the one for which a new trial was granted.

(2) Whether the court erred in instructing the jury relative to the effect of a misrepresentation or misstatement by the insured of his physical condition.

(3) Whether the court erred in refusing to require the defendant to elect whether it would rely upon its claim of suicide or upon its claim that the beneficiary was responsible for the death of the insured.

(4) Whether the court erred in charging the jury that the burden of proving that the insured was killed by some third person other than the beneficiary was upon the plaintiff.

(5) Whether there were other errors justifying the granting of a new trial.

If the first receives a negative answer those other than the second do not require consideration. If it is answered in the affirmative, all are for consideration.

[1] 1. The plaintiff claims that there were other errors than the one made the basis of the court's order granting the new trial. The plaintiff may support the order upon any error of law properly raised, justifying the granting of the motion. Morrow v. St. Paul, etc., Ry. Co., 65 Minn. 382, 67 N. W. 1002;Langan v. Iverson, 78 Minn. 299, 80 N. W. 1051;Poirier Mfg. Co. v. Griffin, 104 Minn. 239, 116 N. W. 576. Under Laws 1913, c. 474, § 1, subd. 4, (G. S. 1913, § 8001, subd. 4), the sufficiency of the evidence to sustain the verdict is not reviewable on the plaintiff's appeal. See Montee v. Great N. Ry. Co., 129 Minn. 526, 151 N. W. 1101;Heide v. Lyons, 128 Minn. 488, 151 N. W. 139.

[2] 2. The defendant claimed that in his application Mr. McAlpine misrepresented or misstated his physical condition. The court at the request of the plaintiff instructed the jury as follows:

‘Any misrepresentation made by John McAlpine in the negotiation of the policy sued upon shall not be deemed to be material nor shall the same defeat recovery on the policy or prevent its attaching unless you find that he, John McAlpine, made the same with intent to deceive and defraud the defendant, or unless the matter misrepresented increased the risk of loss.’

This is the substance of R. L. 1905, § 1623, (G. S. 1913, § 3300), which is as follows:

‘No oral or written misrepresentation made by the assured, or in his behalf, in the negotiation of insurance, shall be deemed material, or defeat or avoid the policy, or prevent its attaching, unless made with intent to deceive and defraud, or unless the matter misrepresented increases the risk of loss.’

It is claimed by the plaintiff that this section does not apply to an accident policy, but that section 1693, which reads as follows, is applicable:

‘In any claim upon a policy issued in this state without previous medical examination, or without the knowledge or consent of the insured, or, in case of a minor, without the consent of his parent, guardian, or other person having his legal custody, the statements made in the application as to the age, physical condition, and family history of the insured shall be valid and binding upon the company, unless willfully false or intentionally misleading.’ R. L. 1905, § 1693 (G. S. 1913, § 3467).

Upon the motion for a new trial the court was of the opinion that section 1693 applied and that it was in error in charging section 1623. For this reason it granted a new trial. Both of these sections appear in the Insurance Code of 1895. Laws 1895, c. 175, §§ 20, 71. The Massachusetts statute has provisions of the same effect. R. L. c. 118, §§ 21, 73. We have not found in Massachusetts or elsewhere a construction of them.

There is a kind of life insurance where no medical examination, such as is usual with life companies, is required, and which is sometimes taken without the knowledge of the insured. It goes under the general designation of industrial life insurance. It is not accident insurance, nor casualty insurance, nor workmen's compensation. The premiums are small, often five cents a week or some multiple thereof, or other small amount paid monthly. The average amount of the insurance is small-hardly more than sufficient to pay burial expenses and give slight temporary relief. The agents of the insurance company solicit the insurance and call weekly or monthly and make collections. Sometimes insurance is taken, or in the past it has been taken, without the knowledge of the insured. The companies engaging in it write child insurance. In a way the insurance is a sort of family insurance intended as a protection against family misfortune or as an inducement to thrift and saving and often all members of the family are insured. While the periodical premiums are small the insurance is not cheap. On the contrary, owing partly to the character of the risks and lack of discrimination in taking them and partly to the cost of administration, it is expensive. With the particular characteristics of it we are not now concerned. It is enough to know that it is a kind of insurance in common use and familiar to legislative bodies and of the general character stated. There are millions of this insurance in Minnesota. Detailed information relative to it may be obtained from the following sources: Insurance (Ind.) 11 Americana; 14 Britannica, 671; Henderson Industrial Insurance, 149; Willoughby, Workmen's Ins. 212; Improvements in Industrial Life Insurance, 15 Am. Jour. Soc. 478-501; Dryden, Life Insurance, 19-117; Yale, Readings in Insurance, 384-399; Hoffman, History of Prudential Insurance Co.; Industrial Insurance, 26 Ann. Am. Acad. Pol. & Soc. Sci. 103; Bunyon, Life Ins. 308, 323; Macgillivray, Ins. Law, 22; Testimony New York Legislative Insurance Investigating Committee, 1905, vol. 6, pp. 4874-4974, 5023-5075. Many reported cases illustrate industrial insurance. Thomas v. Prudential Ins. Co., 158 Ind. 461, 63 N. E. 795;Floyd v. Prudential Ins. Co., 72 Mo. App. 455;Jenkins v. Sun Life Ins. Co., 120 Ky. 790, 87 S. W. 1143;Ferretti v. Prudential Ins. Co., 49 Misc. Rep. 489,97 N. Y. Supp. 1007;Shea v....