Mut. Life Ins. Co. of New York v. Guller

• Decision Date: 02 April 1918
• Docket Number: No. 9508.,9508.
• Citation: 68 Ind.App. 544,119 N.E. 173
• Parties: MUTUAL LIFE INS. CO. OF NEW YORK v. GULLER.
• Court: Indiana Appellate Court

68 Ind.App. 544

119 N.E. 173

MUTUAL LIFE INS. CO. OF NEW YORK

v.GULLER.

No. 9508.

Appellate Court of Indiana, Division No. 1.

April 2, 1918.

Appeal from Circuit Court, Gibson County; Samuel L. Vandeveer, Judge.

Action by Nicholas C. Guller, as guardian of Mary M. Guller and others, against the Mutual Life Insurance Company of New York. Judgment for plaintiff, and defendant appeals. Affirmed.

Morton C. Embree, of Princeton, Frederick L. Allen, of New York City, and Lucius C. Embree, of Princeton, for appellant. Henry Johnson and Byron M. Johnson, both of Owensville, for appellee.

BATMAN, P. J.

This is an action commenced by appellee to recover on a policy of life insurance, issued by appellant on the life of one Grace Guller, now deceased, in the sum of $1,000, in which appellee's wards, Mary M. Guller, John D. Guller, and Jewel N. Guller, were named as beneficiaries. The complaint is in a single paragraph in the usual form, a copy of such policy being made a part thereof by exhibit. Appellant filed an answer in three paragraphs. Each of said paragraphs contains the following admissions and allegations of facts: It is admitted that the policy in suit was issued on the 14th day of March, 1914; that appellee's said wards were named as beneficiaries therein; that all the premiums due thereon had been paid; and that due proofs of the death of said Grace Guller had been furnished appellant. It is alleged that on the date on which said policy was issued the said Grace Guller was a married woman; that subsequently, on the 15th day of November, 1914, the said Grace Guller, with the intent then and there and thereby to procure her miscarriage, voluntarily submitted to a criminal operation, and caused a criminal operation to be performed upon her, the said Grace Guller then and there being pregnant; that said criminal operation was dangerous to life, and at the time known by the said Grace Guller to be so; that said operation was not performed by a physician for the purpose of saving the life of either the said Grace Guller, or of the child with which she was pregnant; that as a result of said criminal operation the said Grace Guller did miscarry, and thereafter, on the 2d day of December, 1914, died of septicemia, following and caused by such miscarriage; that her death resulted directly from, and was proximately caused by, her own act in procuringsaid criminal operation and voluntarily submitting thereto; that as soon as appellant became cognizant of the facts above stated, to wit, on the 6th day of October, 1915, it tendered to appellee as such guardian, in good and lawful currency of the United States of America, the sum of $22.85, the same being the amount of the premium paid by the said Grace Guller on said policy, together with interest thereon at the rate of 6 per cent. per annum from the 18th day of April, 1914, to the 6th day of October, 1915; that said tender was refused by appellee; and that it has paid said money into court for the use of appellee.

The said first paragraph of answer contains the following special allegations, not found in either of the other paragraphs:

“The defendant says, however, that the plaintiff ought not to have and recover in this action, for the reason that said policy of insurance was issued upon, and contained as a part thereof, and as a part of a contract of the defendant with the said Grace Guller, certain terms and conditions in respect to the liability of the defendant to the beneficiaries thereunder, in the event of the death of the said Grace Guller, among which was the following express condition, namely: The company shall not be liable hereunder in the event of the insured's death by his own act, whether sane or insane, during the period of one year after the date of the issue of this policy, as set fourth in the provisions of the application indorsed hereon or attached hereto.”

The second paragraph of answer contains the following special allegations, not found in either of the other paragraphs:

“The defendant says, however, that the plaintiff ought not to have and recover in this action, for the reason that said policy of insurance was issued upon, and in pursuance of, a written application therefor made to it by the said Grace Guller, a copy of which is hereto attached and made a part of this answer, marked ‘Exhibit A’; that a copy of said application was made a part thereof, and a part of the contract of insurance thereby evidenced, and said policy and said application became and constituted the entire contract between said defendant and the said Grace Guller; and the defendant charges that said policy was issued in consideration of, and its validity depended upon, the statements, agreements, conditions and warranties therein, made by the said Grace Guller, and each one of them, and that among said statements, agreements, conditions, and warranties was the following express understanding and agreement, to wit: ‘It is understood and agreed that the risk of death will not be covered by the policy if such death occur by my own act, whether sane or insane, during the period of one year next following the date of issue.”’

The third paragraph of answer contains the following special allegations, not found in either of the other paragraphs:

“The defendant further says that the act of the said Grace Guller in so submitting to said operation was in violation of law, and was grossly immoral; that a death so caused was not insured against by said policy; that by reason of the acts above stated said policy has become, and is now, null and void; and that it is contrary to public policy to permit a recovery thereon.”

To each of said paragraphs of answer appellant filed a demurrer for want of facts, accompanied by a memorandum of the grounds on which the same was based. This demurrer was overruled as to each of said paragraphs, and an exception was duly reserved. Appellant refused to plead further, and thereby elected to stand upon its answer. Judgment was thereupon rendered against appellant upon the pleadings in the sum of $1,019 and costs. From this judgment appellant prosecutes this appeal, and has assigned the sustaining of appellee's demurrer to each of its paragraph of answer, as the errors on which it relies for reversal.

The sufficiency of the first and second paragraphs of such answer involves the same question, and will be considered together. It will be noted that the first paragraph is based on a clause of the policy, which provides against liability “in the event of the insured's death by his own act” while the second paragraph is based on a clause of the application, which provides against liability, “if such death occur by my own act.” The question arises over the meaning of the words “death by his own act” and “death *** by my own act.” Appellee contends that they mean death by suicide and nothing more; that the death of the insured in the manner and from the cause alleged was not death by suicide; and therefore, such paragraphs are insufficient. Appellant contends that the words in question have a broader meaning than the term “suicide”; that they embrace every case of death by one's own act, except death by accident, or from an act, which at the time it was entered upon was not expected or intended to result in death; the death in the manner and from the cause alleged, comes within their meaning; and therefore, such paragraphs are sufficient.

[1] In construing a contract it is the duty of the court to ascertain the intention of the parties, and give effect to such intent. In so doing words used are to be understood in their plain, ordinary, and popular sense, unless there is something in the contract to indicate a different meaning. Straus v. Yeager (1911) 48 Ind. App. 448, 93 N. E. 877. This rule applies to insurance as well as to other contracts. Modern Woodmen, etc., v. Miles (1912) 178 Ind. 105, 97 N. E. 1009. It is apparent that when the words in question are so considered, they must be held to mean suicide. Such interpretation is evidently in accord with the popular understanding, and, as there is nothing to indicate the contrary, such meaning must be accepted. The courts of other jurisdictions have ascribed such meaning to them when so used. Supreme Lodge, etc., v. Gelbke, 168 Ill. 365, 64 N. E. 1058;Mutual Life Ins. Co. v. Weiswell, 56 Kan. 765, 44 Pac. 996, 35 L. R. A. 258. In the case last cited the court said, on page 768 of 56 Kan., on page 998 of 44 Pac., 35 L. R. A. 258:

“But the courts are in general accord in holding that the words of a condition avoiding the policy if the assured shall die ‘by his own hand’ or ‘by his own act’ are equivalent to a proviso against suicide or intentional self-destruction.”

This is in accord with the view of this court, as expressed in the case of North American Union v. Oleske (1917) 116 N. E. 68, where it is held that the words “die by his own hand or act” mean suicide. The conclusion we have reached finds support in the fact that the clause of the policy under consideration has for a heading the word “suicide.” This was also true in the case last cited, and such fact was held to be significant in determining what the parties understood to be the meaning of the words quoted. While the word “suicide” does not appear as a heading to the clause in the application on which the second paragraph of answer is based, the language used is of similar import to that used in the clause of the policy on which the first paragraph of answer is based, and must be held to have the same meaning. The cause of death described in each the first and second paragraphs of answer is the same. It did not result from suicide, as the essential elements of intention and expectation are absent. Northwestern, etc., Ins. Co. v. Hazelett (1885) 105 Ind. 212, 4 N. E. 582, 55 Am. Rep. 192. For the reasons stated it follows that the court did not err in sustaining the demurrer to either the first or second paragraph of such...