The Mutual Life Insurance Company of New York v. Wiswell

Decision Date09 May 1896
Docket Number8376
Citation44 P. 996,56 Kan. 765
PartiesTHE MUTUAL LIFE INSURANCE COMPANY OF NEW YORK v. JOHN WISWELL, as Administrator de bonis non of the Estate of S. Fred Harker, deceased
CourtKansas Supreme Court

Decided January, 1896.

Error from Cherokee District Court.

JOHN N RITTER, as administrator of the estate of S. Fred Harker deceased, filed his petition November 28, 1890, declaring on a policy of insurance issued by the Mutual Life Insurance Company of New York October 22, 1889, to and upon the life of said S. Fred Harker for the sum of $ 2,000. The policy was on the 20-year life plan, the assured was 24 years of age, the annual premium was $ 61.80, and the death of the assured occurred July 5, 1890. The defenses relied upon are, that the negative answer given to question 9, as follows: "Have you any predisposition, either hereditary or acquired, to any constitutional disease such as consumption, rheumatism insanity, gout, or scrofula," was false as to insanity, and that the assured died by his own act in taking opium or some other poisonous substance, notwithstanding he had warranted the truth of said negative answer, and that he would not die by his own act during the period of two years after the date of said policy. It was not directly averred in the answer that the assured committed suicide, or designedly or intentionally took his own life. The reply consisted of a general denial and an averment that the assured did not take such opium or other poisonous substance with the intent or purpose of producing death, and that, if death did ensue from the taking of such poison, it was unintentional and purely accidental.

On the trial, at January term, 1892, the court gave, among others, the following instructions:

"4. You are instructed that unless you believe from the testimony in this case that the said S. Fred. Harker came to his death by his own act by opium poison, self-administered, with intent to destroy his own life, or that he falsely stated that he had no predisposition, either inherited or acquired, to a constitutional disease, as insanity, your verdict must be for the plaintiff.

"5. If you believe from the testimony in this case that the said Harker died from poison self-administered, except you believe from the evidence that the taking of such poison was unintentional or accidental, your verdict will be for the defendant."

"8. You are instructed that accidental death, although literally by one's own act, is not within the terms of the warranty exempting the company from liability upon the policy; and, when it is shown that the death was accidental or unintentional, a recovery may be had on the policy in this case, if you believe from all the evidence that Harker took as a medicine and without an intent to destroy his own life, and by accident he took an overdose of poison, and death resulted therefrom, your verdict will be for the plaintiff, except you find that defendant has proven the other defense relied on.

"9. If, from all the evidence in this case, you are in doubt whether the death of said Harker was the result of accident or suicide, you will resolve the doubt in favor of the theory of accident.

"10. If you believe from the evidence in this case that the said Harker in his application gave a false answer to the company to the question whether he was predisposed to the constitutional disease of insanity, whether such predisposition was hereditary or acquired, such false answer will render the policy void, and your verdict will be for the defendant.

"11. The defense is a legal one, and is to be so regarded by you. The purpose of those questions and answers is to enable the company to determine whether they will accept the risk and insure the applicant. By express agreement these answers are warranted to be true, and offered to the company as a consideration of the contract of insurance. The answers should be true, and unless they were true, to the knowledge of the applicant, the policy is void.

"12. Some evidence has been offered you for the purpose of showing that some proceedings were had in the county court of Perry county, Illinois, in the year 1885, in which the said Harker was adjudged to be insane; that he was sent to the asylum of the state of Illinois at Anna. This evidence is not conclusive on you as to his alleged insanity. You are to consider it in connection with all the evidence in the case, and from all the testimony determine whether the deceased was in fact predisposed to insanity, whether the same was constitutional, hereditary, or acquired, and whether, at the time he gave the answer to the question to which I have directed your attention, was known to him to be false. If you believe from all the evidence that the answer to said question was in fact untrue, you will find for the defendant.

"13. If you believe from the evidence in this case that, prior to making this application for insurance, the said Harker had been insane, and you further believe that owing to some peculiarity of temperament or habits of life he was liable to a return of his insanity, whether the same was inherited or constitutional, you will find for the defendant."

The jury, on January 14, 1892, returned a verdict in favor of the plaintiff for $ 2,133.26; and, after the overruling of a motion for a new trial on the part of the defendant, the court rendered a judgment upon the verdict, and the insurance company prosecutes this proceeding in error to reverse said judgment. On February 8, 1896, John N. Ritter, administrator, died, and on March 2, 1896, John Wiswell was appointed administrator de bonis non, and the action was revived in this court by consent, March 5, 1896. Some further facts appear in the opinion, filed May 9, 1896.

Judgment affirmed.

R. M. Cheshire, for plaintiff in error.

A. H. Skidmore, T. P. Anderson, and John Wiswell, for defendant in error.


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