Paulsen v. Modern Woodmen of America

• Decision Date: 10 February 1911
• Court: North Dakota Supreme Court

130 N.W. 231

21 N.D. 235

JENS PAULSEN v. MODERN WOODMEN OF AMERICA

Supreme Court of North Dakota

February 10, 1911

Appeal from District Court, Cass county, Chas. A. Pollock, J.

Action by Jens Paulsen against Modern Woodmen of America, judgment in favor of plaintiff, defendant appeals.

Affirmed.

Benjamin D. Smith and V. R. Lovell, for appellant.

Amendments should be allowed to save rights and advance justice. Coghlin v. Stetson, 22 Blatchf. 88, 19 F. 727; Conner v. Smith, 74 Ala. 115; Miller v Metzger, 16 Ill. 390; Trego v. Lewis, 58 Pa 463; Newberg v. Farmer, 1 Wash. Terr. 183; Milch v. Westchester F. Ins. Co. 13 Misc. 231, 34 N.Y.S. 15; Union Bank v. Ridgley, 1 Harr. & G. 324.

Breach of warranty in application for life insurance is a valid defense. 3 Cooley, Briefs on Insurance, 1950, and cases cited; Bacon, Ben. Soc. § 197; McDermott v. Modern Woodmen, 97 Mo.App. 636, 71 S.W. 833; Modern Woodmen v. Van Wald, 6 Kan.App. 231, 49 P. 782; Baumgart v Modern Woodmen, 85 Wis. 546, 55 N.W. 713; Genrow v. Modern Woodmen, 151 Mich. 250, 114 N.W. 1009.

Suicide as a defense to a claim for insurance may be shown by circumstantial evidence. Sovereign Camp, W. W. v. Haller, 24 Ind.App. 108, 56 N.E. 255; Germania L. Ins. Co. v. Ross-Lewin, 24 Colo. 43, 65 Am. St. Rep. 215, 51 P. 488; Brignac v. Pacific Mut. L. Ins. Co. 112 La. 574, 66 L.R.A. 322, 36 So. 599; Supreme Tent, K. M. v. King, 73 C. C. A. 668, 142 F. 678; Lindahl v. Supreme Court, I. O. F. 100 Minn. 87, 8 L.R.A.(N.S.) 916, 117 Am. St. Rep. 666, 110 N.W. 358.

May be shown by a fair preponderance of the evidence. Kerr v. Modern Woodmen, 54 C. C. A. 655, 117 F. 593; Sharland v. Washington L. Ins. Co. 41 C. C. A. 307, 101 F. 206; Brown v. Sun L. Ins. Co. -- Tenn. --, 51 L.R.A. 252, 57 S.W. 415; Knights of Pythias v. Steele, 107 Tenn. 1, 63 S.W. 1126; Bachmeyer v. Mutual Reserve Fund Life Asso. 87 Wis. 325, 58 N.W. 399; Agen v. Metropolitan L. Ins. Co. 105 Wis. 217, 76 Am. St. Rep. 905, 80 N.W. 1020; Pagett v. Connecticut Mut. L. Ins. Co. 55 A.D. 628, 66 N.Y.S. 804; Johns v. Northwestern Mut. Relief Asso. 90 Wis. 332, 41 L.R.A. 587, 63 N.W. 276; Sovereign Camp, W. W. v. Hruby, 70 Neb. 5, 96 N.W. 998; 1 Greenl. Ev. § 13a.

The presumption against death is a rebuttable one. Agen v. Metropolitan L. Ins. Co. 105 Wis. 217, 76 Am. St. Rep. 905, 80 N.W. 1020; White v. Prudential Ins. Co. 120 A.D. 260, 105 N.Y.S. 87; Supreme Tent, K. M. v. King, 73 C. C. A. 668, 142 F. 678; Travellers' Ins. Co. v. McConkey, 127 U.S. 661; 32 L.Ed. 308, 8 S.Ct. 1360; Somerville v. Knights Templars & M. Life Indemnity Asso. 11 App. D. C. 417; Johns v. Northwestern Mut. Relief Asso. 90 Wis. 332, 41 L.R.A. 587, 63 N.W. 276; Sackberger v. National Grand Lodge, I. O. T. L. 73 Mo.App. 38; Clement v. Clement, 113 Tenn. 40, 81 S.W. 1249; Cooley, Briefs on Insurance, 3256; Hardinger v. Modern Brotherhood, 72 Neb. 860, 101 N.W. 983; 103 N.W. 74; Clemens v. Royal Neighbors, 14 N.D. 116, 103 N.W. 402, 8 A. & E. Ann. Cas. 1111.

A verdict based upon conjecture or mere possibility cannot stand. Sovereign Camp, W. W. v. Haller, 24 Ind.App. 108, 56 N.E. 255; Sovereign Camp W. W. v. Hruby, 70 Neb. 5, 96 N.W. 998; Agen v. Metropolitan L. Ins. Co. 105 Wis. 217, 76 Am. St. Rep. 905, 80 N.W. 1020; Leisenberg v. State, 60 Neb. 628, 84 N.W. 6, 14 Am. Crim. Rep. 193.

If permitted to stand, it will be reversed on appeal. Sovereign Camp, W. W. v. Haller, 24 Ind.App. 108, 56 N.E. 255; Agen v. Metropolitan L. Ins. Co. 105 Wis. 217, 76 Am. St. Rep. 905, 80 N.W. 1020; Pagett v. Connecticut Mut. L. Ins. Co. 55 A.D. 628, 66 N.Y.S. 804; Inghram v. National Union, 103 Iowa 395, 72 N.W. 559; Supreme Lodge, K. H. v. Fletcher, 78 Miss. 377, 28 So. 872, 29 So. 523; Johns v. Northwestern Mut. Relief Asso. 90 Wis. 332, 41 L.R.A. 587, 63 N.W. 276; Sovereign Camp, W. W. v. Hruby, 70 Neb. 5, 96 N.W. 998; Supreme Tent, K. M. v. King, 73 C. C. A. 668, 142 F. 678; Zearfoss v. Switchmen's Union, 102 Minn. 56, 112 N.W. 1044; Germania L. Ins. Co. v. Ross-Lewin, 24 Colo. 43, 65 Am. St. Rep. 215, 51 P. 488; White v. Prudential Ins. Co. 120 A.D. 260, 105 N.Y.S. 87; Mutual L. Ins. Co. v. Hayward,--Tex. Civ. App. , 27 S.W. 36; Sovereign Camp, W. W. v. Thiebaud, 65 Kan. 332, 69 P. 348.

Engerud, Holt & Frame, for respondents.

What inference shall be deduced from circumstantial evidence is for the jury, not the court. Stevens v. Continental Casualty Co. 12 N.D. 463, 97 N.W. 862; Knights Templars & M. Life Indemnity Co. v. Crayton, 209 Ill. 550, 70 N.E. 1066; Courtemanche v. Supreme Court, I. O. F. 136 Mich. 30, 64 L.R.A. 668, 112 Am. St. Rep. 345, 98 N.W. 749; Accident Ins. Co. v. Bennett, 90 Tenn. 256, 25 Am. St. Rep. 685, 16 S.W. 723; Dischner v. Piqua Mut. Aid & Acci. Asso. 14 S.D. 436, 85 N.W. 999; AEtna L. Ins. Co. v. Kaiser, 115 Ky. 539, 74 S.W. 203; Hale v. Life Indemnity & Invest. Co. 61 Minn. 516, 52 Am. St. Rep. 616, 63 N.W. 1108; Harms v. Metropolitan L. Ins. Co. 67 A.D. 139, 73 N.Y.S. 513; Goldschmidt v. Mutual L. Ins. Co. 35 N.Y. S. R. 121, 12 N.Y.S. 866; Penfold v. Universal L. Ins. Co. 85 N.Y. 317, 39 Am. Rep. 660.

Presumption is against suicide; and circumstances must be sufficiently strong to overcome it. Clemens v. Royal Neighbors, 14 N.D. 116, 103 N.W. 402, 8 A. & E. Ann. Cas. 1111; Modern Woodmen v. Kozak, 63 Neb. 146, 88 N.W. 248; Leman v. Manhattan L. Ins. Co. 46 La.Ann. 1189, 24 L.R.A. 589, 49 Am. St. Rep. 348, 15 So. 388; Travellers' Ins. Co. v. McConkey, 127 U.S. 661, 32 L.Ed. 308, 8 S.Ct. 1360; Travellers' Ins. Co. v. Nitterhouse, 11 Ind.App. 155, 38 N.E. 1110.

Suicide must be intentional self-destruction. Penfold v. Universal L. Ins. Co. 85 N.Y. 317, 39 Am. Rep. 660.

OPINION

FISK, J.

This is an appeal from a judgment of the district court of Cass county. The action was brought to recover the sum of $ 2,000 and interest claimed to be due plaintiff under a beneficiary certificate issued by defendant to one Soren Peter Paulsen in due form in the year 1906; and at the time of the death of said Paulsen, which took place on May 16, 1907, the plaintiff was the beneficiary named in such certificate. The complaint is in the usual form, alleging the issuance of such beneficiary certificate, wherein and whereby defendant promised and agreed, in consideration of the payment of certain dues and assessments by said Paulsen to defendant, to pay to the beneficiary named therein in the event of the death of said Paulsen while a member of said defendant society in good standing, the sum of $ 2,000, upon the presentation to it of proofs of the death of the insured; that the said insured during his life complied with all conditions and requirements of such contract on his part to be kept and performed and that in due time proofs of death were duly made to the defendant, but that it refuses to pay to the plaintiff, as beneficiary, any part of the sum thus agreed to be paid by the terms of such contract of insurance.

The answer admits the issuance of the benefit certificate mentioned in the complaint, as therein alleged. The answer then alleges that its by-laws and application for membership form a part of such contract of insurance, and that § 65 of its by-laws provides: "If any member of this society, holding a benefit certificate heretofore or hereafter issued, shall, within three years after becoming a beneficial member of this society, die by his own hand, except by accident, whether sane or insane, . . . his benefit certificate shall thereby become null and void, . . ."

The answer then alleges, "that, within three years after becoming a beneficial member of this society, he, the said Soren P. Paulsen, came to his death by his own hand; that is to say, his death was caused by strychnine administered by his own hand, and not by accident; and he thereby did end his life, by reason whereof the said benefit certificate herein sued on became absolutely null and void, and this defendant was thereby released from any and all liability thereon."

It will thus be seen that the sole issue was whether the insured committed suicide. The facts are practically all stipulated. At the trial plaintiff offered in evidence the benefit certificate, together with the application therefor; also those portions of the stipulated facts showing the death of Soren P. Paulsen, as alleged, and that due proofs of death were submitted to defendant by plaintiff, and rested. Whereupon defendant offered in evidence the entire stipulations of fact, and rested. Whereupon both parties moved for a directed verdict, and each motion was denied and the cause submitted to the jury pursuant to written instructions of the trial judge, and a verdict returned in plaintiff's favor for the amount prayed for in the complaint. Thereafter, and on December 10, 1908, judgment was duly rendered and given in plaintiff's favor on such verdict, from which judgment defendant appeals.

Appellant assigns error as follows:

(1) The court erred in refusing to permit the defendant to serve and file amended answer setting up the second affirmative ground for defense.

(2) The court erred in refusing to grant defendant's motion to postpone the case over the term.

(3) The court erred in denying defendant's motion to instruct the jury to return a verdict in its behalf.

(4) The court erred in submitting the case to the jury for determination.

(5) The court erred in overruling defendant's motion for a new trial.

(6) The court erred in instructing the jury: "If you conclude from the evidence that Paulsen knowingly swallowed the strychnine, then you must determine from the evidence whether he took it knowing it to be poison, and with the intent to end his life. If he swallowed the poison by mistake, or if he took an overdose by mistake, then it would not be suicide or self-destruction...