Mutual Life Ins. Co. v. Stibbe

• Decision Date: 07 March 1877
• Citation: 46 Md. 302
• Parties: THE MUTUAL LIFE INSURANCE COMPANY OF BALTIMORE v. CAROLINE STIBBE.
• Court: Maryland Court of Appeals

46 Md. 302

THE MUTUAL LIFE INSURANCE COMPANY OF BALTIMORE v. CAROLINE STIBBE.

Court of Appeals of Maryland

March 7, 1877

APPEAL from the Court of Common Pleas.

The case is stated in the opinion of the Court.

First Exception.--Stated in the opinion of the Court.

Second Exception.--The plaintiff offered the following prayer:

If the jury shall find from the evidence that Caroline Stibbe, the plaintiff, is the widow of Solomon D. Stibbe, and that the defendant corporation executed the policy of insurance offered in evidence, and delivered the same to the said Solomon, and that he paid to the defendant all the premiums due thereon up to the time of his death, and that he died on or about the twenty-ninth day of January, 1875, and that the plaintiff exhibited to the defendant the proofs of death which were offered in evidence on or about the ninth day of February, 1875, then the jury must find a verdict for the plaintiff, unless the jury shall find from the evidence that Solomon D. Stibbe made an untrue statement in answer to the fifth interrogatory in his application for the policy of insurance; or unless the jury shall find from the evidence that the direct cause of Solomon's death was the use of intoxicating drink, and it will not be sufficient to defeat the plaintiff's right to a verdict, if the jury shall find from the evidence that the use of intoxicating drink was the indirect cause of Solomon's death.

And the defendant offered the five following prayers:

1. The defendant prays the Court to instruct the jury, that the affidavit of the plaintiff contained in the proof of death offered in evidence by her, is conclusive upon her as to the cause of the death of the insured, and that the cause of death set forth in said affidavit is not such as to entitle her to recover in this action upon the policy of insurance sued on in this case.

2. That if the deceased died from a different cause from that set forth in the affidavit of the plaintiff contained in the proofs of death offered in evidence by her, then the plaintiff is not entitled to recover in this action.

3. The defendant prays the Court to instruct the jury, that the plaintiff is not entitled to recover in this action, and that it is not competent for her to sue in her own name and in her own right upon the policy of insurance offered in evidence in this case.

4. That if the jury find from the evidence that the death of the deceased was occasioned by the use of intoxicating liquor the plaintiff is not entitled to recover in this action.

5. That if the jury find that at the time the policy of insurance was issued, the insured had been a man whose habits had not been sober and temperate, the plaintiff is not entitled to recover.

The Court (GAREY, J.,) granted the plaintiff's prayer, and granted the fourth and fifth prayers of defendant, and refused the first, second and third prayers of defendant. The defendant excepted.

The jury rendered a verdict for the plaintiff, and judgment was entered accordingly. The defendant appealed.

The cause was argued before BARTOL, C.J., STEWART, GRASON and MILLER, J.

Charles Marshall, for the appellant.

There was error in granting the plaintiff's prayer, because it submits to the jury a question of law, viz., What is the direct, and what the indirect cause of death? The question is a mixed question of law and fact, and the Court should have instructed the jury as to what is in law a direct or proximate cause of death, leaving the jury to find whether the facts proved established such a cause of death in this case. And because it was calculated to mislead the jury.

It is difficult to understand what is meant by the expressions "direct cause" and "indirect cause" of death, used in the prayer.

The proof of death made by plaintiff herself, and offered in evidence by her, and affirmed by her to be true in her testimony, shows that mental anxiety caused the insured to indulge in drink, and the anxiety and drink killed him.

Now it may be said that the insured drank from mental anxiety, and therefore the direct cause of death, the causa causans, was mental anxiety.

So if he drank because he loved liquor, the direct cause, we suppose, would not be the liquor itself, but the love of it and under such a construction, the provisions of the policy on the subject of death from drink, would become nugatory.

If death was caused by drink, although there may have been other contributing causes, drink was a proximate cause of death, and the jury should have been so instructed. If mental anxiety alone did not cause death, but mental anxiety and drink did, then drink was the proximate cause of death.

There was error in rejecting the defendant's first and second prayers.

The plaintiff herself had made affidavit to the cause of death, and that statement bound her. In fact, she reiterated it when examined as a witness. In this case, she was bound by the affidavit, if for no other reason, because there was absolutely no evidence to the contrary.

The evidence of the attending physician does not conflict with the plaintiff's affidavit as to the cause of death. Irving vs. Excelsior Fire Ins. Co., 1 Bosworth, 507, 509; Campbell vs. Charter Oak Fire & Marine Ins. Co., 10 Allen, 213; Mutual Benefit Life Ins. Co. vs. Newton, 22 Wallace, 32.

The defendant's third prayer is based upon the policy itself. This being a contract between the company and the assured, the plaintiff could not sue upon it.

It is not an insurance of the life of Stibbe under a contract between the company and the plaintiff, but the contract, which is under seal, is between the company and Stibbe himself. In one event, the policy is to be paid to Stibbe, in another to his wife; but the promise in either case is made to Stibbe, and he or his legal representatives only can maintain the suit.

There is no covenant with the plaintiff, but there is a covenant with Stibbe to pay the plaintiff, in a certain contingency.

She cannot sue on such a contract. Flynn vs. North American Life Insurance Co., 115 Mass., 449; Woodberry Savings Bank vs. Charter Oak Ins. Co., 29 Conn., 374; Balto. Fire Ins. Co. vs. McGowan, 16 Md., 47.

H. L. Emmons and Wm. Shepard Bryan, for the appellee.

To explain the points under the second exception, we must advert to the issues in the cause.

The policy was void if the death was caused by the use of intoxicating drink; or if any of the statements in the application was untrue.

The defendant set up these two defences, and the evidence was directed to these two points. The Court in the instructions granted, left these two questions to the jury. There was no other contested question of fact in the case, everything else being admitted, as appears from the first exception.

It is rather late for the defendant to say that the plaintiff's prayer left a question of law to the jury. The phraseology of the prayer is, that commonly used and has been frequently sanctioned by this Court. Among other instances there is the second prayer of plaintiff in Balto. & Ohio R. Road vs. Fitzpatrick, 35 Md., 35; plaintiff's prayer in Georgia Ins. Co. vs. Dawson, 2 Gill, 368; plaintiff's first prayer in B. & O. R. R. Co. vs. State, use of Trainor, 33 Md., 542; plaintiff's first prayer in McMahon vs. N. C. Railway, 39 Md., 451; Price's Case, language of Court, 29 Md., 437, at bottom of page.

It has never been supposed that the question of direct cause was not a question for the jury. If the defendant had desired any explanations to be given to the jury on this point, he should have offered a prayer for the purpose.

The amount insured was payable "in ninety days after satisfactory proofs of death." It was necessary for the plaintiff to show that these preliminary proofs had been furnished. But the proofs were not evidence in her behalf for any other purpose than to show that she had complied with the requirements of the policy in that regard. Citizens' Fire Ins. Co. vs. Doll, 35 Md., 89; and she did not use them for any other purpose. It was necessary to offer them, so that the Court could determine their sufficiency. They were, however, competent evidence for the defendant to show plaintiff's declarations. They were accordingly offered by it, and Dr. Keirle and Mrs. Stibbe were examined by defendant, as to the statements made by them respectively in these preliminary proofs. The burden of proof was on defendant to sustain its defences, and it examined these two witnesses for that purpose. Piedmont, &c., Ins. Co. vs. Ewing, 2 Otto, (S. C. Reps.,) 377; Jones Manufacturing Co. vs. Manufacturing and F. I. Co., 8 Cushing, 82; Insurance Co. vs. Francisco, 17 Wallace, (S. C.,) 672. The defendant's first prayer seeks to exclude from the jury all of its own evidence on the cause of death, except Mrs. Stibbe's statement of opinion contained in the preliminary proof, and pronounces a matter of law that this defeats the recovery. Be it observed, that the statement was that mental anxiety and indulgence in drink, "caused his death in my opinion." It does not show which of these causes in her opinion was remote and proximate. The doctor's statement which was a part of the same document, and which was also offered in evidence by defendant, shows that deceased died from cerebral congestion, and that the remote cause was drink, and the proximate cause was mental anxiety. Mrs. Stibbe's opinion does not show that the death arose from one of the prohibited causes. Dr. Keirle's statement shows positively that it did not arise from a prohibited cause.

Cases have occurred where the preliminary proof has shown that the plaintiff was not entitled to recover; and in some of these cases, the Courts have held that the plaintiff could not introduce evidence, showing that...