Red Men's Fraternal Accident Association of America v. Rippey
| Decision Date | 25 November 1913 |
| Docket Number | 22,528 |
| Citation | 103 N.E. 345,181 Ind. 454 |
| Parties | Red Men's Fraternal Accident Association of America v. Rippey |
| Court | Indiana Supreme Court |
Rehearing Denied April 3, 1914, Reported at: 181 Ind. 454 at 460.
From Washington Circuit Court; Thomas B. Buskirk, Judge.
Action by Susan H. Rippey against the Red Men's Fraternal Accident Association of America. From a judgment for plaintiff, the defendant appeals. (Transferred from the Appellate Court under § 1405 Burns 1908, Acts 1901 p 590.)
Reversed.
W. W Hottel, for appellant.
Mitchell & Mitchell, for appellee.
Appellant issued to appellee's husband a benefit certificate, June 12, 1908. He died December 28, 1908. Among other provisions for benefits and indemnity for sickness, accident and death, the certificate provided that, in case of the death of the certificate holder, while the certificate was in force, the association would pay to appellee, his wife, if living, under conditions contained in the certificate, the sum of $ 100, if the certificate holder should die as the result of sickness. Appellee sued to recover this sum. Appellant answered the complaint by general denial. There was also a special answer which was based on a provision in the certificate which limited the agreement of the association to pay the sum named. This provision was as follows: "During the first twelve months from the date of this certificate, or any reinstatement thereunder, no indemnity or benefit shall be claimed or be payable if the disability or death is caused or contributed to by rheumatism, lumbago, sciatica, or tuberculosis which shall exist or commence within twelve months from the date of this certificate." This answer alleged that the certificate holder died on December 30, 1908, within twelve months of the date of the certificate; that the cause of his death was pulmonary tuberculosis and that, therefore, no liability on the certificate had accrued. A general denial was replied to this answer and the issues thus formed were tried by jury which found for plaintiff. From a judgment thereon comes this appeal.
The only errors assigned and not waived arise from the action of the court in overruling appellant's motion for a new trial. Some of the causes for a new trial presented by appellant's motion are based on the action of the trial court in giving instructions on its own motion and at the request of appellee and its refusal to give instructions requested by appellant. One of these instructions, which was given by the court at the request of appellee over appellant's objection and exception, was as follows: "The jury is instructed that the defendant to sustain its second paragraph of defense in this cause, must show by a fair preponderance of the evidence that James F. Rippey, the insured, came to his death by pulmonary tuberculosis or that said disease was the proximate cause of his death, and that said defendant returned or offered to return the premiums to plaintiff before the bringing of this suit." The court also gave at the request of appellant the following instruction: "The defendant has alleged in its answer to the complaint that the deceased died of tuberculosis, and that his death occurred within the year from the date of the execution of the contract sued on, and I instruct you that if you find from a fair preponderance of the evidence in this case that the deceased did die of tuberculosis within a year from the execution of the contract or policy, then I instruct you that the plaintiff cannot recover, and your verdict should be for the defendant."
The benefit certificate issued to appellee's husband contained the provision set out in appellant's second paragraph of answer as above stated. It can scarcely be doubted that there may be a valid stipulation in a policy of life insurance wholly exempting the insurer from liability in case of death from some specified disease, or cause, and it follows that a certificate or policy of insurance may provide that there shall be no liability on the part of the insurer if the insured die within a year, from some cause of disease excepted from the general provisions of the contract to insure against death. 25 Cyc. 874, and cases there cited; 2 Bacon, Ben. Soc. and Life Ins. (3d ed.) § 320; 2 Beach Insurance § 912; Knights, etc., Ins. Order v. Schoaf (1906), 166 Ind. 367, 77 N.E. 738. In such case, the insurance is of a limited nature until after the expiration of the time named and there is no insurance against death from the excepted disease or cause within the time specified. Death from the excepted cause within the time fixed by the certificate is a matter of defense and need not be negatived or anticipated by the complaint, the burden resting on the insurer to allege by answer and to prove by a preponderance of the evidence the fact of death from the excepted cause within the time named. When alleged and proved, the defense is complete. 4 Joyce, Insurance § 3684; Coburn v. Travelers Ins. Co. (1887), 145 Mass. 226, 230, 13 N.E. 604; see cases collected in note to Starr v. Aetna Life Ins. Co. (1905), 4 L. R. A. (N. S.) 636. Such a provision is similar to a provision against liability in case of death from suicide and the rule just stated has been frequently applied to such cases. Modern Woodmen, etc. v. Craiger (1910), 175 Ind. 30, 92 N.E. 113, 93 N.E. 209; Modern Woodmen, etc. v. Kincheloe (1911), 175 Ind. 563, 94 N.E. 228, ...
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