McDonald v. Mut. Life Ins. Co.
| Decision Date | 15 December 1916 |
| Docket Number | No. 30080.,30080. |
| Citation | 178 Iowa 863,160 N.W. 289 |
| Parties | MCDONALD v. MUTUAL LIFE INS. CO. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Delaware County; Franklin C. Platt, Judge.
Myrtle L. Irish, now deceased, obtained a policy of insurance on her life from the defendant insurance company. Upon her decease, the appellant, McDonald, claiming to act as administrator of the estate of the said Myrtle Irish, recovered a judgment upon said policy. Thereafter a new trial was granted the defendant. This appeal is from that order. Affirmed.J. J. Locher and J. S. Welch, both of Monticello, for appellant.
Deacon, Good, Sargent & Spangler, of Cedar Rapids, for appellee.
The motion for new trial has 14 grounds. Among them is that the court erred in striking out certain testimony, given by the parents on an inquiry before a grand jury into whether the said Myrtle died because of a criminal operation, and to strike same out on the ground that the parents were not the real parties in interest.
[1] One defense was that the parents of the said Myrtle are her sole heirs, that these heirs aided in procuring the performance of a criminal operation upon their daughter, and were therefore incompetent and incapacitated, under the law, to take or receive, by inheritance or otherwise, any portion of the estate of the daughter. It may be safely stated, as a general proposition, that if the court erred in striking out this testimony, it did not err in granting a new trial because it had stricken it out. It seems clear the exclusion of said testimony was an error. If, by the aid of her parents, the policy holder brought about her own death through a criminal operation, defendant is not liable. Wells v. New England Life Insurance Co., 191 Pa. 207, 43 Atl. 126, 53 L. R. A. 327, 71 Am. St. Rep. 763;Hatch v. Mutual Life Insurance Co., 120 Mass. 551, 21 Am. Rep. 541;Burt v. Union Central Life Insurance Co., 187 U. S. 362, 23 Sup. Ct. 139, 47 L. Ed. 216;Ritter v. Mutual Life Insurance Co., 169 U. S. 139, 18 Sup. Ct. 300, 42 L. Ed. 693;Lundholm v. Mystic Workers, 164 Ill. App. 472.
[2][3] Testimony given before the grand jury on investigating the cause of the daughter's death is admissible to bind the witnesses who gave it. See Steele v. Potthast, 109 Iowa, 417, 80 N. W. 517;Ford v. Dilley, 156 N. W. 525. The parents gave testimony before the grand jury tending to prove that the daughter had come to her death by the means aforesaid. This testimony, as seen, is binding upon the parents. If it was also binding upon plaintiff's administrator, it was error to strike same out, and error which not only justifies, but would ordinarily require, the granting of a new trial. The avails of the policy sued on are not subject to the claims of creditors. The parents are the sole heirs, the real parties in interest, the estate --therefore, the administrator who sues is purely a nominal party. See In re Bagnola, 154 N. W. 464, and Christe v. Railroad, 104 Iowa, 707, 74 N. W. 697. It follows that unless there be some competent avoidance, the trial court was right in awarding a new trial because it had excluded the said testimony before the grand jury.
[4] As such avoidance it is urged upon us that the ground of the motion attacking said exclusion was overruled, wherefore we may not sustain the order made because of the exclusion. This argument is based upon the fact that on making the order granting a new trial, the court said:
“When I decided the case, I was under the impression that the evidence was of such nature that no pleading need be made by the plaintiff alleging a waiver of notice of proof of loss, but upon having examined the case thoroughly, I am satisfied that such pleading was necessary, and the objection made by the defendant to the evidence regarding the proof of loss should have been sustained.”
The real reliance of appellant seems to be upon the fact that in continuing this statement the trial judge said, “For that reason the motion for a new trial is sustained,” which is claimed to be a statement that, sustaining the motion, rests wholly upon this reason, which is assigned in terms, and that therefore all the other grounds of the motion are overruled. This is followed out by the claim that if we must find the assigned reason to be an untenable reason, we must reverse the order granting a new trial, which is all logical if the premise be sound. The motion did present the ground upon which the court ruled in terms. It is, of course, true that this particular ground was sustained, and true the court does say that the motion “is sustained for that reason.” It is, however, not said, in terms at least, that other grounds of the motion do not affect the court, nor that all others are overruled. It is true, also,...
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