Scherar v. Prudential Ins. Co.
| Decision Date | 08 January 1902 |
| Citation | 88 N.W. 687,63 Neb. 530 |
| Parties | SCHERAR v. PRUDENTIAL INS. CO. |
| Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
1. It is within the discretion of the trial court to permit a defendant to amend his answer, and error cannot be predicated upon it, unless an abuse of discretion is shown, and prejudice resulting therefrom.
2. A condition in a life insurance policy that if, within three years from the date of the policy, the insured should die by suicide, sane or insane, the liability of the company should be limited to the amount of the premiums paid, is valid, and it is no answer to such a stipulation that the insured was insane, or unconscious of the moral and physical consequences of the act which caused death.
3. Evidence examined, and held not to constitute a waiver of forfeiture in the policy.
Commissioners' opinion. Department No. 1. Error to district court, Douglas county; Dickinson, Judge.
Action by George B. Scherar, by John G. Hetter, his next friend, against the Prudential Insurance Company. Judgment for defendant, and plaintiff brings error. Affirmed.Green & Breckenridge, for plaintiff in error.
Hiram A. Sturges and A. N. Ferguson, for defendant in error.
This action was brought by George B. Scherar, a minor, by John G. Hetter, his next friend, in the district court of Douglas county, to recover upon a policy of insurance for the sum of $1,000, issued by the Prudential Insurance Company upon the life of Rose H. Scherar, payable, in the event of death of the insured, to the plaintiff. Upon the trial the court directed the jury to return a verdict in favor of the plaintiff for the amount of the premiums paid. In obedience to this instruction a verdict was returned for the plaintiff for $63.36, upon which judgment was rendered, to review which the plaintiff brings the case to this court on error.
The defendant admitted the execution of the policy on October 10, 1894, and the death of the insured on or about April 13, 1896. By way of defense it pleaded a provision of the policy that if, within three years from the date of the policy, the insured should die by suicide, whether sane or insane, the liability of the company should not exceed the amount of the premiums paid on the policy. It was also alleged that the insured came to her death by strangulation, caused by her own act while insane. The defense was also pleaded that the policy contained a stipulation that, if the premiums were not paid when due, the policy should be void; that the insured had failed to pay the premium becoming due April 10, 1896, and by reason of such nonpayment of premium the policy became null and void. The plaintiff admitted the condition of the policy that if the insured should die by suicide, whether sane or insane, the liability of the company should not exceed the amount of the premiums paid, and admitted that the insured at the time of her death was insane, and that her death was caused by strangulation, but sought to avoid the terms of the contract by an allegation that the insured was in such an insane condition that she was unconscious of the act which caused her death, and wholly unable to determine the physical result of her act. The reply further alleged that the defendant had waived the conditions of its policy which relieved it from liability in the event of death by suicide, whether sane or insane, by canceling the policy for nonpayment of premium, and not because the insured committed suicide. The reply further alleged that the prompt payment of the premium had been waived, and that the policy was not in fact canceled till May 1, 1896. Immediately prior to the submission of the case to the jury the defendant withdrew its defense of the nonpayment of the premiums when due, and consented that the court might instruct the jury to find for the plaintiff to the extent of the premiums which had been paid. It is contended by the plaintiff that the defendant should not have been permitted to amend its answer upon the eve of trial. The answer filed alleged that the insured came to her death by strangulation, voluntarily caused by her own act. The amended answer alleged that “the insured came to her death by strangulation, caused by her own act while in an insane condition of mind.” The right to amend a pleading at any time during the pendency of the action, and even after judgment, rests largely within the discretion of the trial court, and no error can be predicated upon the allowance of an amendment unless an abuse of discretion is shown to the prejudice of the complaining party. In this case there is no pretense that the amendment was prejudicial to the rights of the plaintiff; in fact the reply admitted the new matter alleged in the amended answer to the effect that the insured came to her death by suicide while insane. This rule has been so many times announced by this court that the citation of authorities in support of it seems unnecessary. Section 144, Code Civ. Proc.; Dunn v. Bozarth, 59 Neb. 244, 80 N. W. 811;Bank v. Rice, 44 Neb. 598, 63 N. W. 60.
The important question presented by the record is the construction to be given to the clause avoiding the policy if the insured should die by suicide, sane or insane. It is the duty of the court to ascertain from the contract, if possible, what the parties meant by it, and, when so ascertained, to give the effect to it. The intention of the parties in incorporating into the contract the proviso that it should be void if, within three years from date thereof, the insured should die by suicide, sane or insane, seems to us so manifest that an explanation of its meaning seems hardly necessary. The language employed is plain, simple, and concise, and, when given its common and ordinary meaning, is not likely to be misunderstood. Under the terms of this policy it was clearly the intention of the parties to protect the insurer from liability, except to the amount of the premiums paid for any self-destruction by the insured, no matter what the mental condition of the insured might be at the time the act was committed. It was entirely immaterial whether the insured was mildly or violently insane, or whether her malady was of such a character that she was unconscious of the moral and physical nature of the act. No kind or degree of insanity will prevent an avoidance under such a contract where the assured commits the act of self-destruction. There is no reason why the insurer may not by stipulation contract that the liability shall not extend to acts of self-destruction committed while the insured is sane or while he is insane, the same as the insurer may contract that the liability shall not extend to hazardous occupations, residence within the tropics, death in a duel, or the like. The insurer evidently was unwilling to incur the perils of insanity, and the clause exempting it from liability was inserted to protect it against that hazard. It is well settled by a long line of decisions in this country that under the old forms of life insurance policies in which it is provided that the insurer should not be liable if the insured committed “suicide” or “died by his own hand” the policy was not avoided when the insured committed suicide while insane; the basis of the reasoning being that it was not within the contemplation of the parties that the policy should be avoided if the insured was insane at the time of the suicide. A few of the many cases readily found are cited. Association v. Waller, 57 Ga. 533; Hathaway's Adm'r v. Insurance Co., 48 Vt. 335;Newton v. Insurance Co., 76 N. Y. 426, 32 Am. Rep. 335; Scheffer v. Insurance Co., 25 Minn. 534; Insurance Co. v. Terry, 15 Wall. 580, 21 L. Ed. 236;Insurance Co. v. Isett's Adm'r, 74 Pa. 176;Insurance Co. v. Moore, 34 Mich. 41; Eastabrook v. Insurance Co., 54 Me. 224, 89 Am. Dec. 743. In view of the decisions of the courts, and apparently to meet the effect of them, companies began to insert in their policies such words as are used in this policy, or words equivalent thereto, as “suicide, sane or insane,” “die by his own hand, sane or insane,” and other like expressions. There are a few cases to be found in which...
To continue reading
Request your trial