Tippets v. Gem State Mut. Life Ass'n, Inc.

• Decision Date: 15 June 1966
• Docket Number: No. 9783,9783
• Citation: 416 P.2d 38,91 Idaho 91
• Parties: Ellis I. TIPPETS and Mary A. Tippets, husband and wife, Plaintiffs-Respondents, v. GEM STATE MUTUAL LIFE ASSOCIATION, INCORPORATED, Defendant-Appellant.
• Court: Idaho Supreme Court

Page 38

416 P.2d 38

91 Idaho 91

Ellis I. TIPPETS and Mary A. Tippets, husband and wife, Plaintiffs-Respondents, v. GEM STATE MUTUAL LIFE ASSOCIATION, INCORPORATED, Defendant-Appellant.

No. 9783.

Supreme Court of Idaho.

June 15, 1966.

As Modified on Denied of Rehearing July 11, 1966.

Gee, Hargraves & Armstrong, Pocatello, for appellant.

Sharp, Anderson & Bush, Idaho Falls, for respondents.

McFADDEN, Chief Justice.

Ellis I. Tippets and Mary A. Tippets, the plaintiffs herein, as named beneficiaries, instituted this action to recover the face amount, $5,000, of a life insurance policy issued March 24, 1962, by the defendant Gem State Mutual Life Association, Incorporated, on the life of Vernon C. Tippets, deceased, the plaintiffs' unmarried son, who died November 5, 1963, as the result of a gunshot wound in the head.

In their complaint the plaintiffs alleged the issuance of the policy, that premiums had been paid as required, and that the insurance policy was in effect when the assured died; that they had submitted proofs of death as required, but that the defendant company returned only the premiums paid and refused payment of the amount of the policy; that subsequent demand was also made upon the company which was denied. They also alleged they were entitled to reasonable attorney's fees for prosecution of the action and prayed judgment for the amount of the policy and reasonable attorney's fees.

By its answer the defendant admitted the issuance of the policy, and that demand thereunder had been made, but denied that proof of death had been submitted in accordance with the requirements of the contract.

The cause went to trial before a jury on the issues framed by the pleadings. The plaintiffs rested their case, after proving plaintiffs rested their case, after proving policy, payment of premiums, filing of claim with morticians statement, and their demand. The defendant moved for dismissal, which motion the court denied. The defendant then put on its case, and submitted proof to establish that the assured's death was as a result of suicide. At the close of the case, defendant again moved for dismissal of the action or in the alternative for an advisory instruction to the jury to find for the defendant, which motion was denied. Plaintiffs then reopened the case to submit to the court proof as to reasonable attorney's fees.

Defendant contends that the proof submitted was uncontradicted that the death of the insured was suicidal and by reason of the following exception in the policy, its only obligation under the contract was repayment of premiums:

'If the Assured shall commit suicide, whether sane or insane, within two years from the effective date of the policy, the liability of the Gem State Mutual shall not exceed the total amount of premium paid and no more. After the policy has been in force for a period of two years, self destruction shall be covered for one-half the Face Amount of the Policy.'

While no issue of death by suicide was interposed by defendant's answer, the issue was tried without objection (I.R.C.P. 15(b)), and the jury was instructed by the court on the presumption against suicide. (See Haman v. Prudential Insurance Company, 91 Idaho 19, 415 P.2d 305.)

Nine members of the jury returned a verdict in favor of plaintiffs, and this appeal was taken. The defendant assigns as error: the failure of the trial court to grant their motions for dismissal, or their motion for an instructed verdict; the acceptance of evidence of attorney's fees; the giving of instructions on presumptions in general, and in particular the giving of instructions on the presumption against suicide; the instructions given the jury on the burden of proof; the refusal to admit an exhibit, which was a newspaper clipping concerning the death of the assured; and finally that the verdict is against the law and the evidence and rest only on speculation.

The issue of whether instructions on the presumption against suicide in a case of this nature should be given was discussed by this court in the case of Haman v. Prudential Ins. Co., supra, wherein, it was held that a jury should be instructed on the presumption against suicide, where the trial court had instructed the jury that the burden of proof was on the plaintiff to establish by a preponderance of the evidence that the insured's death was an accident, within the terms of a double indemnity life insurance policy. It should be pointed out herein, however, that the trial court by its instructions advised the jury that the party 'who asserts the affirmative of an issue must carry the burden of proving it', explained the meaning of 'burden of proof', and 'preponderance of the evidence', and that the burden was on the plaintiffs to establish the facts upon which their case was based by a preponderance of the evidence.

The trial court further instructed the jury by defining a 'presumption' and also stated:

'If the party who is favored by a presumption does not have the burden or proof on the issue to which the presumption relates, then it stands as true until and unless it is overcome by a preponderance of the evidence.'

Continuing, the court defined 'suicide', and instructed that the law presumes a death to be accidental until the contrary is made to appear; the reason for such presumption; and then stated:

'The presumption against suicide is not conclusive, but may be overcome not only by verbal testimony, but also by evidence of the circumstances or reasonable deductions from the facts established. The fact of suicide need not be shown beyond a reasonable doubt, but only by a mere preponderance of the evidence.'

Following this instruction the court then instructed:

'In this case, if you are not convinced by the evidence that this presumption has been overcome by the defendant Gem State Mutual Life Association, Inc., in the manner herein explained to you, then you should return a verdict for the plaintiffs. If, however, you are convinced by the evidence in this case that the presumption has been overcome in the manner herein explained to you, then you should return a verdict in favor of the defendant.'

Even though the jury was instructed that the defendant had to overcome the presumption of accidental death by a preponderance of the evidence, this is in effect an instruction that the defendant has the burden of proof of the issue of suicide, you nowhere did the court instruct as to how this issue came into the case. The court did not instruct the jury that the defendant was interposing as an affirmative defense, under the policy provisions, that the deceased came to his death by suicide. This issue was presented for resolution to the jury by admitting into evidence of the facts surrounding the death, but was not raised by the pleadings. See: Shepherd v. Midland Mutual Life Ins. Co., 152 Ohio St. 6, 87 N.E.2d 156, 12 A.L.R.2d 1250 (1949); Hoholik v. Metropolitan Life Ins. Co., 289 Mich. 242, 286 N.W. 228 (1939); Burrier v. Mutual Life Ins. Co. of New York, 63 Wash.2d 266, 387 P.2d 58 (1963); Jefferson Standard Life Insurance Co. v. Clemmer, 79 F.2d 724 (4th Cir. 1935); Annot. 142 A.L.R. 742; 29 A Am.Jur. Insurance §§ 1852, 1855, pp. 914 and 920.

This court in considering whether it was error to refuse to give an instruction on the presumption of due care, in Mundy v. Johnson, 84 Idaho 438, at 450, 373 P.2d 755, at 762, stated: 'The rule imposing the burden of proof upon the defendant to establish contributory negligence is in such cases an adequate protection to the rights of plaintiffs.' (See also: Drury v. Palmer, 84 Idaho 558, 375 P.2d 125; Domingo v. Phillips, 87 Idaho 55, 390 P.2d 297). In the instant case real doubt is raised as to the propriety of giving the instruction of the presumption against suicide, for as in the cases involving the giving of instructions on the presumption of due care, the burden of proof imposed upon the defendant to establish death by suicide would be adequate protection to the rights of the plaintiffs. By reason of the final conclusions of the court in this case hereinafter discussed, it is unnecessary to determine whether giving of the instruction of the presumption of accidental death and against suicide was error.

Defendant contends that the plaintiffs failed to present due proofs sufficient to satisfy the terms of the policy, and by reason thereof that the trial court erred in not granting their motion to dismiss or for a directed verdict. The plaintiffs, however, point out that the record discloses that the president of the company, after receipt of their claim and a mortician's statement showing burial of the assured, made no demand upon them for futher proof of loss, but instead secured additional information on its own by way of a death certificate executed by the county coroner, and a newspaper clipping, both of which indicated the assured's death was by suicide. Thereafter the company denied all liability under the policy, except for the return of premiums. Under such circumstance, when the insurance company proceeds with its own investigation and makes a determination as to its liability and denies coverage as a result of its own investigation and determination, it is deemed to have waived its right to demand further proof of loss. Theriault v. California Insurance Co., 27 Idaho 476, 149 P. 719 (1915); Price v. North American Acc. Ins. Co., 28 Idaho 136, 152 P. 805 (1915); Aetna Ins. Co. v. Ralls, 200 Okl. 32, 190 P.2d 787 (1948); Western Farm Bureau Mutual Insurance Co. v. Lee, 63 N.M. 59, 312 P.2d 1068 (1957); 45 C.J.S. Insurance § 982(6) and (d) and (h), pp. 1206, 1209; 29A Am.Jur. Insurance § 1431, p. 542.

The defendant's assignment of error directed to the failure of the trial court to grant their motion for dismissal or for an instructed verdict necessitates a review of the evidence presented.

Vernon C. Tippets, the assured, had entered the Army at the age of 17 years, before graduation from high...