New York Life Ins. Co. v. Dean

• Decision Date: 30 November 1928
• Citation: 11 S.W.2d 417,226 Ky. 597
• Parties: NEW YORK LIFE INS. CO. v. DEAN et al.
• Court: Kentucky Court of Appeals

11 S.W.2d 417

226 Ky. 597

NEW YORK LIFE INS. CO. v. DEAN et al.

Court of Appeals of Kentucky

November 30, 1928

Appeal from Circuit Court, Oldham County.

Action by Edwin W. Dean and others against the New York Life Insurance Company. Judgment for plaintiffs, and defendant appeals. Reversed, with directions.

Wm Marshall Bullitt, John Tarrant, Gavin H. Cochran, and Bruce &amp Bullitt, all of Louisville, for appellant.

Robert T. & Wm. Crowe and J. Ballard Clark, all of La Grange, for appellees.

THOMAS J.

On April 3, 1925, the appellant and defendant below, New York Life Insurance Company, issued a policy upon the life of William J. Dean, in which it agreed to pay upon his death, to the beneficiaries named therein, the appellees and plaintiffs below, Edwin W. Dean et al., the sum of $2,000. The policy contained this independent clause:

" Self-Destruction.-In event of self-destruction during the first two insurance years, whether the Insured be sane or insane, the insurance under this Policy shall be a sum equal to the premiums thereon which have been paid to and received by the Company and no more."

On October 27 of the same year the insured destroyed his life by shooting himself through the head with a pistol and from the effects of which he immediately died. Defendant declined to pay the policy, because of the above-inserted clause contained therein, and plaintiffs brought this action against it in the Oldham circuit court to recover the amount thereof. In their petition they set out the above clause contained in the policy, and then alleged:

"That at the time the said William J. Dean shot himself he was so insane that he did not know he was taking his life and did not know that the act which he was committing would probably result in his death."

The answer admitted the execution of the policy, and then set out the "self-destruction clause" that it contained, followed by the averment, that on October 27, 1925, the insured killed himself "while sane, and at a time when he had mind enough to know that the act he committed would probably cause his death." In another paragraph defendant offered to confess judgment for the amount of the premiums that had been paid on the policy, together with interest thereon. The reply denied that the insured destroyed his life "while sane or at a time when he had mind enough to know that the act he committed would probably cause his death." With the pleadings in that condition, defendant moved for the burden of proof, which the court overruled, and to which it excepted. At the close of all the testimony, it again moved for the closing argument to the jury, which the court overruled, and it again excepted. There was a verdict in favor of plaintiffs for the full amount of the policy, upon which judgment was rendered, and which the court declined to set aside on defendant's motion for a new trial, and it has appealed.

The errors relied on for reversal are (1) the refusal of the court to sustain defendant's motion for the burden of proof; (2) error of the court in overruling its motion for a peremptory instruction in its favor, made at the close of plaintiff's testimony and at the close of all the testimony; and (3) that the verdict is flagrantly against the evidence.

In disposing of error (1) it is necessary to make some brief observations on the extent of the defense based upon such clauses in life insurance policies. In the case of National Life Insurance Co. v. Watson, 194 Ky. 355, 239 S.W. 35, 35 A. L. R. 156, an epitomized history of what has come to be known as the ""suicide clause" in life insurance policies was made, as was partially done in the prior case of Manhattan Life Insurance Co. v. Beard, 112 Ky. 455, 66 S.W. 35, 23 Ky. Law Rep. 1747. In those two cases, as well as numerous others intervening between them and in some prior to the first and subsequent to the last of them, this court announced its interpretation of such clauses against suicide (and similar expressions) "either sane or insane"; and which interpretation was and is that the clause furnishes a complete defense, unless the insured at the time of committing the act resulting in his death "was so devoid of mind" at the time as to not know or realize the nature of his act and the physical consequences thereof, or, in other words, "that he did not know what he was doing and did not intend to commit the act which resulted in his death" (from the Watson opinion). That interpreted application of the defense, though firmly settled in this and a few other states, is contrary to the one given to such clauses by a large majority of other courts as will be seen in the annotations to the Watson Case in the volume of 35 A. L. R. supra, beginning on page 166 and extending to and including page 187.

We are not now concerned with the question as to whether the majority or the minority rule of interpretation be the correct one, since, if for no other reason, the stare decisis doctrine admonishes us that we should not reject the minority rule after having so thoroughly aligned ourselves with the other courts adopting and applying it. Under that interpretation such clauses do not exonerate the insurer if the insured at the time he committed the self-destroying act did not know, realize, or contemplate the consequence of his act, or that it would result in his death. In other words, that the attempt in the clause to excuse defendant from payment of the policy if the insured was insane would not have that effect if his insanity was to the extent indicated. That being true, a pleading relying on such defense would be incomplete if it merely averred that the insured committed suicide, or if it also went further and averred that he suicided while insane, without averring the additional element to complete the defense under the minority interpretation; i. e., that at the time he did so, though insane, he possessed mind enough to realize and contemplate the results of his act and committed them with the intention to produce his death. If such allegations are necessary to a complete defense, it necessarily results from the rules of logic as well as those of good pleading that the burden would be on defendant to prove such pleaded defense if the facts contained therein were denied.

For the same reason, it is well settled by adjudications from this and other courts, as well as by text-writers on the subject, that a plaintiff is not required to anticipate in his pleading setting up his cause of action any defense that might be interposed to it and negative therein such defense, and that, if he does do so, such anticipatory matter will be treated as surplusage and be given no more effect than if it had been entirely omitted from the pleading in which it appears, and which rule seems to be universally applied in actions on life insurance policies containing such clauses, as will be seen from annotations to the case of Starr v. Ætna Life Insurance Co., 41 Wash. 228, 83 P. 113, 4 L. R. A. (N. S.) 636, and annotations to the case of Red Men's Fraternal Accident Association of America v. Rippey, 181 Ind. 454, 103 N.E. 345, 104 N.E. 641, 50 L. R. A. (N. S.) 1006.

In the case of Philadelphia Life Insurance Co. v. Farnsley, 162 Ky. 27, 171 S.W. 1004, we had before us the question as to whether plaintiff, in a suit on a contract containing several clauses, should anticipate and avoid a defense contained therein in a separate and independent clause from the one containing the promissory obligation which was sought to be enforced, and we held that he was not so required, but that, on the contrary, it was defendant's duty to rely on it in his defensive pleading if he desired to avail himself of it. Such conclusion so reached in that case is in complete accord and in perfect harmony with general rules of good pleading as announced by recognized legal authors and as adopted and approved by the courts throughout the country.

Later cases from this court applying that rule of practice are, Anderson v. Greenville Coal Co., 205 Ky. 111, 265 S.W. 472, and Home Insurance Co. of New York v. Johnson, this day decided and reported in 11 S.W.2d 415. In the Anderson opinion, in determining the legal effect of such anticipatory pleading, we said:

"It adds nothing to the petition, nor does it detract anything from it. A plea in avoidance of a defense naturally and logically should be made in a reply, and it was wholly unnecessary to encumber the petition with this matter in avoidance."

And in the annotations in volumes 4 and 50 L. R. A. (N. S.), supra, in dealing with this question of pleading in life insurance cases involving forfeiture clauses in the policy, the learned annotator says:

"It is well settled that in actions on life or accident policies the plaintiff need not allege that the death or injury of the insured did not result from a cause which by the terms of the policy would relieve the insurer from liability."

Many cases are cited wherein plaintiff anticipated in his original pleading defenses to actions on the policy, and which were contained in it, other than that arising upon the "suicide clause," and in all of them it was held that the pleading was bad and that the anticipated matter was pure surplusage and plaintiff obtained no advantage thereby; and, in the opinion in the Johnson Case, supra, we announced the rule that such anticipations could not serve to deprive defendant of the burden of proof if he were otherwise entitled to it. Other cases to the same effect are cited in that opinion, and in the annotations supra, to the case in 4 L. R. A. (N. S.), the general rule, as applied in the Johnson opinion, is thus stated:

"In such cases the burden of proof is not put upon the plaintiff, even though his petition negatives the

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