North American Union v. Oleske

• Decision Date: 16 May 1917
• Docket Number: No. 9299.,9299.
• Citation: 64 Ind.App. 435,116 N.E. 68
• Parties: NORTH AMERICAN UNION v. OLESKE.
• Court: Indiana Appellate Court

64 Ind.App. 435

116 N.E. 68

NORTH AMERICAN UNION

v.OLESKE.

No. 9299.

Appellate Court of Indiana, Division No. 2.

May 16, 1917.

Appeal from Superior Court, Porter County; Harry L. Crumpacker, Judge.

Action by Augusta Oleske against the North American Union. Judgment for plaintiff, and defendant appeals. Affirmed.

Clarence V. Donovan, of Chicago, Ill., Worth W. Pepple, of Michigan City, and John M. Stinson, of Hammond, for appellant. Grant Crumpacker, of Valparaiso, and C. R. & J. B. Collins, of Michigan City, for appellee.

CALDWELL, J.

Appellant is a fraternal benefit association, organized under the laws of Illinois, and licensed to do business in Indiana. February 3, 1910, appellant issued a beneficiary certificate on the life of Valentine Turczynski, whereby his life was insured in the sum of $2,000. His wife, Augusta Turczynski, now by a subsequent marriage the appellee, Augusta Oleske, was named as beneficiary. The insured died November 21, 1910. Appellee brought this action to recover on the policy. Appellant filed an answer in three paragraphs: First, a general denial; second, tender of $85.40; and, third, that the insured committed suicide. A reply being filed, a trial resulted in a verdict for $2,414, on which judgment was rendered.

The questions properly presented on this appeal arise under the motion for a new trial. The second and third paragraphs of answer are based on the following provision of the certificate:

“Suicide.-If the said insured shall die by his own hand or act, either sane or insane, such death shall forfeit any and all rights and claims to the amount stated in this policy, and the beneficiary or beneficiaries shall receive and be paid in lieu thereof a sum equal to the total amount actually paid by said insured to the mortuary and reserve funds of the said North American Union, less any amount which has been paid to the insured under this policy.”

[1] The provision respecting the death of the insured by his own hand or act means death by suicide. Bigelow v. Berkshire, etc., Co., 93 U. S. 284, 23 L. Ed. 918;Supreme Lodge v. Gelbke, 198 Ill. 365, 64 N. E. 1058. That the parties to the contract so understood it is indicated by the word “Suicide,” placed as a heading to the quoted portion of the certificate.

At the trial the principal question in controversy was whether the insured's death resulted from his administering to himself carbolic acid with suicidal intent. All other matter in controversy was related to such principal question.

[2] Proceeding to consider the alleged errors, complaint is made of the refusal of the second, fifth, sixth, and seventh instructions tendered by appellant. The second instructionwas to the effect that, if the jury believed from the evidence that the insured committed suicide, there could be no recovery under the certificate. Provisions of life insurance policies, by which death by suicide is excepted from the risk, are sustained and enforced by the courts, and as a rule even though such provisions contain the “sane or insane” clause. Kunse v. Knights of Maccabees, 45 Ind. App. 30, 90 N. E. 89;Union Central Co. v. Hollowell, 14 Ind. App. 611, 43 N. E. 277; Bigelow v. Berkshire, etc., Co., supra; Cady v. Fidelity, etc., Co., 17 L. R. A. (N. S.) 261, note; 14 R. C. L. p. 1232. Here, however, it appears from the provisions of the policy, as above quoted, that even though the insured committed suicide, there might be a recovery in some amount. That fact and the issue of tender relating thereto were ignored by the second instruction. The court was therefore justified in refusing it. It may be said, also, that by the court's ninth instruction, the subject-matter of the refused instruction, including appellee's rights in case the jury found that the insured committed suicide, was fully and accurately presented.

The refused fifth instruction called the jury's attention to the suicide provision of the certificate, and informed the jury that it was the court's duty to construe such provision. Such instruction was covered in detail by the court's second, third, and fifth instructions.

The refused sixth instruction was as follows:

“You are instructed that the presumption of law against suicide may be overturned, not only by verbal testimony but by reasonable deductions from the facts established; that on this question you are to be governed by what is the reasonable probability; that the fact of suicide need not be shown beyond a reasonable doubt, but by a mere preponderance of the evidence.”

The sixth refused instruction is copied from the opinion in Modern Woodmen v. Kincheloe, 175 Ind. 563, 94 N. E. 228, Ann. Cas. 1913C, 1259, wherein it is held that the giving of such instruction cured the error, if any, in refusing an instruction of like nature. The only point made by appellant in support of its contention that the court erred in refusing the sixth instruction, is that the court failed to advise the jury “that they should, in arriving at their verdict, take into consideration all of the circumstances surrounding the alleged commission of the suicidal act” as disclosed by the evidence. The court by the eleventh instruction, of which appellant does not complain, performed such duty specifically, and with great particularity. It may be said, also, that the court by the thirteenth instruction informed the jury that the reasonable doubt rule did not apply. Other elements of the sixth refused instruction, together with the seventh refused instruction, are covered substantially by the court's twelfth instruction, wherein the jury were informed respecting the degree of proof sufficient to establish a proposition.

[3] Complaint is made of the tenth instruction given by the court. This instruction was to the effect that there is a presumption against suicide, and that on that issue the burden is on the party asserting it. There was no error in giving it.

[4] The existence of newly discovered evidence is assigned as one of the grounds for a new trial. Such grounds are supported by certain affidavits and opposed by certain counter affidavits. Such affidavits and counter affidavits, while copied into the transcript, are not made a part of the record by bill of exceptions or order of court. It results that such affidavits and such grounds for a new trial are unavailing on appeal. Creamery, etc., Co. v. Hotsenpiller, 159 Ind. 99, 64 N. E. 600;Townsend v. State, 132 Ind. 315, 31 N. E. 797;Wood v. Crane, 75 Ind. 207. Moreover, a new trial will not be granted on the ground of newly discovered evidence which is merely cumulative. City v. Smith, 31 Ind. App. 546, 68 N. E. 617;Ray v. Baker, 165 Ind. 75, 74 N. E. 619.

[5] The situation here is as follows: The general bill of exceptions discloses affirmatively that it does not contain all the evidence. The order book entry of the filing of the bill recites that it contains but part of the evidence. A certificate of the official reporter, appended to the longhand manuscript of the evidence, recites that for want of time he had not transcribed all the evidence, and hence that the testimony of 25 witnesses and copies of certain exhibits, estimated as amounting to about 600 pages, had been omitted. The judge's certificate recites that that part of the evidence that had been transcribed is correct. Under such circumstances, it does not appear that such newly discovered evidence is not merely cumulative, or that it is of such a character as that it would probably change the result if a new trial were granted. Elliott's App. Proc. 857.

The insured on the morning of the day on which he died was suddenly stricken with severe illness, the nature of the ailment being in controversy. The insured was unconscious, and remained in that condition until he died. Appellee, discovering insured's condition, sent for certain neighbor women, and also called Dr. Keringen. At the trial, appellant offered to prove by the doctor some statement made by appellee to him in the presence of such neighbors and relative to the insured's condition. The statement, if made at all, was made while the doctor, assisted by the neighbors and by appellee, was examining the insured...