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

• Decision Date: 19 December 1932
• Docket Number: No. 4752.,4752.
• Citation: 62 F.2d 236
• Parties: MUTUAL LIFE INS. CO. OF NEW YORK v. SCHENKAT.
• Court: U.S. Court of Appeals — Seventh Circuit

62 F.2d 236 (1932)

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

No. 4752.

Circuit Court of Appeals, Seventh Circuit.

December 19, 1932.

Bert Vandervelde, of Milwaukee, Wis. (Miller, Mack & Fairchild, of Milwaukee, Wis., of counsel), for appellant.

W. G. Evenson, of Baraboo, Wis., for appellee.

Before EVANS and SPARKS, Circuit Judges, and JOHNSON, District Judge.

JOHNSON, District Judge.

Plaintiff (appellee here) brought this suit to recover on a double indemnity policy on the life of Otto Schenkat. The portion of the policy in so far as it is important here is printed as it appears in the policy:

"THE MUTUAL LIFE INSURANCE COMPANY OF NEW YORK WILL PAY

........................... Dollars to the payee of the face amount of Life Insurance Policy No. ............... in connection with which this Double Indemnity Policy is issued, upon receipt of due proof that the death of the Insured under said Life Insurance Policy resulted from bodily injury effected solely through external, violent, and accidental means, and occurred within ninety days after such injury, all upon the conditions set forth in the paragraph entitled "Conditions".

"Conditions. This Double Indemnity Policy will be payable upon receipt of due proof that, while said Life Insurance Policy and this Double Indemnity Policy are in full force (and, if said Life Insurance Policy be a policy of Endowment Insurance, before the end of the endowment period or, if said Life Insurance Policy be a Yearly Renewable Term Policy, before the termination date), said Insured died as a direct result of bodily injury effected solely through external, violent, and accidental means, independently and exclusively of all other causes, and of which, except in the case of drowning or asphyxiation, there is evidence by a visible contusion or wound on the exterior of the body, and that such death occurred within ninety days after the date of such injury; provided that this Double Indemnity Policy shall not be payable if death resulted from self-destruction, whether sane or insane, or from military or naval service in time of war, or from any act attributable to war, or from engaging in riot or insurrection, or from committing an assault or felony, or from participation in aeronautics, or directly or indirectly from disease or bodily or mental infirmity."

The facts were stipulated by the parties and are as follows: The double indemnity policy, which is printed in full on pages 26, 27, and 28 of the printed record, was issued by the appellant on June 23, 1928, on the life of Otto Schenkat, and was in full force and effect on the date of the injury and death of the insured, Otto Schenkat. The full premium had been paid on the policy. It was issued in the state of Wisconsin. The contract of insurance is subject to the statutes of Wisconsin and the laws of the state governing its construction, force, and effect, and the rights of the parties thereto.

Otto Schenkat, the insured, came to his death August 2, 1931, by reason of having taken by mistake a quantity of sodium fluoride, a violent poison, without any intent on his part of doing himself harm or injury, but in the mistaken belief that he was taking a harmless remedy — epsom salts.

His death resulted solely by reason of the absorption of such poison into his system and the destruction of blood cells.

After having taken the sodium fluoride, he became violently ill, was nauseated, perspired freely, vomited blood; his lips and tongue were swollen; he became pale, and later his body discolored and showed marked paralysis. His abdomen was rigid, he suffered great pain, and died within three hours after having taken sodium fluoride.

The policy of insurance sued on was approved by the commissioner of insurance of the state of Wisconsin on April 5, 1927.

The double indemnity policy provided for the payment of the stipulated sum upon proof that the insured died as a direct result of bodily injury, of which there is evidence by a visible contusion or wound on the exterior of the body.

At the conclusion of the trial, each of the parties moved for a directed verdict. The court directed a verdict for plaintiff and entered judgment on the verdict, and this is assigned as error.

Two questions are presented: First, the effect of the Wisconsin statute, which is as follows:

Section 204.31 (2): "No such policy shall be so issued or delivered * * * (6) unless the exceptions of the policy be printed with the same prominence as the benefits to which they apply, provided, however, that any portion of such policy which purports, by reason of the circumstances under which a loss is incurred, to reduce any indemnity promised therein to an amount less than that provided for the same loss occurring under ordinary circumstances, shall be printed in bold-faced type and with greater prominence than any other portion of the text of the policy."

Section 204.31 (9): "A policy issued in violation of this act shall be held valid but shall be construed as provided in this act and when any provision in such policy is in conflict with any provision of this act the rights, duties and obligations of the insurer, the policyholder and the beneficiary shall be governed by the provisions of this act."

The most cursory examination of the part of the policy providing for double indemnity makes it...