Mutual Life Ins. Co. of New York v. Hess

• Decision Date: 24 May 1947
• Docket Number: No. 11787.,11787.
• Citation: 161 F.2d 1
• Parties: MUTUAL LIFE INS. CO. OF NEW YORK v. HESS. HESS v. MUTUAL LIFE INS. CO. OF NEW YORK.
• Court: U.S. Court of Appeals — Fifth Circuit

161 F.2d 1 (1947)

MUTUAL LIFE INS. CO. OF NEW YORK v. HESS.

HESS v. MUTUAL LIFE INS. CO. OF NEW YORK.

No. 11787.

Circuit Court of Appeals, Fifth Circuit.

April 25, 1947.

Rehearing Denied May 24, 1947.

H. Reid DeJarnette, of Miami, Fla., for appellant and cross-appellee.

T. J. Blackwell, of Miami, Fla., for appellee and cross-appellant.

Before SIBLEY, WALLER, and LEE, Circuit Judges.

SIBLEY, Circuit Judge.

The suit was upon a life insurance policy delivered to Frederick Richard Hess in Illinois in 1919, in which Mrs. Eleanore M. Hess, his wife, was beneficiary. She alleged her husband died by accidental drowning on June 3, 1945, having been totally disabled as the result of a slight stroke of apoplexy since January, 1940, and she sought recovery of $3,000 (with dividend accretions), the face of the policy, and also $3,000 for double indemnity in case of accidental death, and for disability payments from January, 1940, till death, all as promised in the policy which she averred had been misplaced or destroyed ten years before the death. The Insurance Company admitted the issuance and validity of the policy, and its loss or destruction, and the death, and liability for the face of the policy, but denied accidental death and total disability within the meaning of the policy, and specially pleaded that no proofs of disability had ever been furnished and that total and permanent disability had not occurred, if at all, before age sixty as defined by the policy, and that the right and opportunity to examine the body and make an autopsy had been denied contrary to the policy. The judge charged the jury to find a verdict for the admitted face of the policy; but charged that disability benefits could not be recovered; and that the denial of opportunity to take an autopsy was not a defense; he submitted the question of double indemnity to the jury, who allowed it. A motion for directed verdict made by the Insurance Company was overruled as was a motion for judgment non obstante and for new trial. The Insurance Company appeals. Mrs. Hess also appeals from the denial of disability benefits.

1. As to the disability benefits, the provision is: "If the insured * * * shall before attaining the age of sixty years at nearest birthday and while this policy is in full force furnish due proof to the Company at its home office that he has become totally and permanently disabled by bodily injury or disease * * * and that such disability has then existed continuously for not less than sixty days, the Company will grant the following benefits." Hess was born Feb. 23, 1880. His disabling apoplectic stroke occurred Jan. 2, 1940, fifty-two days before his sixtieth birthday. His disability had not existed sixty days before that birthday and had not therefore ripened into permanency according to the provision of the policy, as the court held. But the policy further says the total and permanent disability must be shown by the proof within the time limited, and no proof was ever furnished, and this also was held to defeat this claim. We may add yet further that the policy says the disability must happen "before attaining the age of sixty years at nearest birthday," and this makes the insured sixty years old for this purpose so soon as his sixtieth birthday is nearer than his fifty-ninth, that is to say, after he is fifty-nine and a half years old. For all these reasons we hold no disability payments were due Hess, assuming that Mrs. Hess could recover them as general beneficiary of the policy.

2. The autopsy provision is: "The Company shall have the right and opportunity to examine the body and make an autopsy unless prohibited by law." This follows immediately the promises, contained in one sentence, to pay the face of the policy and double indemnity. It is sought to be applied only to the double indemnity, and there alone could it be of service. The question whether Hess' death was due to ordinary drowning, or whether he had another stroke or heart attack which caused or contributed to his death is a close one, and an autopsy alone could answer it certainly. The body of Hess, as he had directed in his will and orally, was cremated shortly after his death and before the Insurance Company was notified of his death, and before Mrs. Hess knew, as she testified, that the policy contained any provision about an autopsy or even any as to a double indemnity for accidental death. The judge told the jury that the double indemnity was not forfeited if she did not know of this requirement and innocently had the body cremated without giving the defendant an opportunity to make an autopsy.

There is an ancient maxim in the law of evidence, Omnia presumuntur contra spoliatorem, discussed in 16 Cyc, page 1058, 31 C.J.S., Evidence, § 152, page 844, in applying which the innocence and good intent of the destroyer of evidence is of great importance; but that is not the exact point here, for we are dealing with the terms of a contract. If this insurance was dependent on a clear condition, Mrs. Hess' ignorance of the condition and her innocence in omitting performance of it would hardly change the contract under which she claims, unless there was waiver or estoppel on the part of the Company. We find a better and more conclusive answer to the Company's position in this, that the quoted stipulation is not made a condition of the insurance nor is it declared that an omission to afford the opportunity to examine the body and have an autopsy shall forfeit the insurance or any part of it. This court had a similar provision before it in Travelers Insurance Co. v. Welch, 5 Cir., 82 F.2d 799, 800, 802, and after elaborate consideration and review of the cases held it was not a condition or a provision for forfeiture, but the reservation of a right to have evidence, which might be asserted otherwise than by forfeiture, and might be lost by not asserting it in a timely and reasonable manner. We said, "The clause does not affect the risk, but applies only after a loss and is concerned with the proof or disproof of the loss. Breach of such a post-loss right, no matter how clearly reserved in the policy, is usually held not a bar to the insurance unless expressly made so. * * * We are of opinion that exhumation on demand for an autopsy was not a condition of the insurance nor a warranty under the wording of this policy; and certainly there was no forfeiture of the insurance under the facts proven." In the Welch case an autopsy by exhumation was possible, and the beneficiary refused to allow it; it was a stronger case for the insurer than this one is. We adhere to the general principles quoted above. The autopsy clause is not available as a bar here.

3. We have greater difficulty with the case for double indemnity. The...