Ætna Life Ins. Co. of Hartford v. Doerr

• Decision Date: 06 April 1917
• Docket Number: No. 9245.,9245.
• Citation: 74 Ind.App. 35,115 N.E. 700
• Parties: ÆTNA LIFE INS. CO. OF HARTFORD, CONN., v. DOERR.
• Court: Indiana Appellate Court

74 Ind.App. 35

115 N.E. 700

ÆTNA LIFE INS. CO. OF HARTFORD, CONN.,

v.DOERR.

No. 9245.

Appellate Court of Indiana, Division No. 1.

April 6, 1917.

Appeal from Circuit Court, Vanderburg County; Duncan C. Givens, Judge.

Action by Elizabeth Doerr against the Ætna Life Insurance Company of Hartford, Conn. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

George A. Cunningham and Daniel H. Ortmeyer, both of Evansville, for appellant. George K. Denton, of Evansville, for appellee.

BATMAN, J.

This is an action by appellee against appellant on a policy of life insurance. Issues were joined and trial was had by the court. At appellant's request the court made a special finding of facts and stated its conclusion of law thereon. Judgment was thereupon rendered against appellant for $1,170, and costs, from which it appealed, and assigned the following errors, on which it relies for reversal:

“Third. The court erred in its conclusion of law stated upon the special finding of facts.

Fourth. The court erred in overruling the appellant's motion for a new trial.”

The special finding of facts is long, and covers many pages of appellant's brief. For the sake of brevity we have greatly abridged the same, and only set out so much thereof as seems necessary for a proper understanding of the questions raised and determined. Such portion is as follows:

“(1) That on the 10th day of November, 1911, the defendant executed and delivered to one Henry P. Doerr its policy of insurance on his life in the sum of $1,000. That said policy contained, among others, the following provisions in substance: The consideration for this policy is the application and quarterly premiums of $14.13 to be paid in advance on the 10th day of November, February, May, and August in each year during its continuance. In the event of the death of the insured, the amount of the policy shall be paid to Elizabeth Doerr, wife of the insured, if she survive him, less any unpaid premium for the current policy year. The company will accept the premiums payable for annual, semiannual, or quarterly periods, according to the published rates for such, at the time this policy is issued, provided that before any change is made from the method of payment herein stipulated the policy shall be forwarded to the home office of the company for proper indorsement. This policy shall not take effect until the first premium hereon shall have been actually paid during the good health of the insured, a receipt for which payment shall be the delivery of the policy. If any subsequent premium be not paid when due, then this policy shall cease, subject to the values and privileges hereinafter described. [Here follow provisions for 31 days of grace with interest.] This policy and application therefor constitutes the entire contract between the parties hereto, and shall be incontestable after one year from its date of issue, except for nonpayment of premium. If the insured shall commit suicide within one year from the date hereof, while sane or insane, this policy shall be null and void.

(2) That at the time of the execution and delivery of said policy the insured paid the first quarterly premium thereon, in the sum of $14.13, and under date of November 7, 1911, executed to the defendant his three promissory notes, each for the sum of $14.13, due on February 7, May 7, and August 7, 1912, respectively; that on the 24th of November, 1911, the defendant executed and delivered to the insured its three premium renewal receipts for $14.13 each, dated February 10, May 10, and August 10, 1912, respectively, evidencing the payment of the quarterly premiums on said policy due on such dates.

(3) That the insured on the 7th day of February, 1912, and within less than one year from said 10th day of November, 1911, committed suicide by causing his own death with his own hands by hanging himself.

(4) That said promissory notes were never paid or filed against the estate of insured, but were tendered back to the administrator of his estate on the 6th day of July, 1912, and were refused by him; that subsequently, on the 30th day of June, 1914, the defendant brought said notes into court and delivered them to the clerk of this court for the use and benefit of the plaintiff and any person entitled to the same, where they remained continuously since said date; that no other tender of said notes was made, and no tender of any money was ever made by defendant to any one on account of the payment of said premiums; that the tender of said notes to the administrator and the deposit of the notes with the clerk of this court was not made with reasonable promptness; that proofs of the death of insured were duly made and forwarded to defendant on the 11th day of March, 1912, and no objections were made to their form or sufficiency; that such proof disclosed said facts as to the suicide of insured.

(5) That the insured had prior to his death performed all the conditions of said contract of insurance on his part to be performed, and the plaintiff had prior to the bringing of this action performed all the conditions thereof on her part to be performed; that the defendant, after the death of the said insured, and before the bringing of this action, waived the defense of suicide, and elected to treat said policy of insurance as valid; that interest on said policy amounts to $170, and the entire amount of principal and interest is $1,170.”

The court stated as a conclusion of law on such findings that the plaintiff is entitled to recover from the defendant on the cause of action stated in her complaint the sum of $1,170, together with her costs. Appellant duly excepted to said conclusion of law, and filed its motion for a new trial, which was overruled, and a proper exception reserved. Judgment was thereupon rendered against appellant in accordance with said conclusion of law, from which this appeal is prosecuted.

It will be observed that it is expressly found that the policy in suit provides that, if the insured shall commit suicide within one year from its date, while sane or insane, the policy shall be null and void, and that the insured did commit suicide within the time specified. Such facts would of themselves prohibit a recovery in this case, if it were not for the further fact, likewise expressly found, that the appellant, after the death of the insured, and before the bringing of this action, waived the defense of suicide, and elected to treat said policy of insurance as valid. If this finding is sustained by the evidence, then the appellee would be entitled to recover under the facts found. We have therefore directed our attention to the evidence in order to ascertain if it supports such finding. An examination of the record has led us to the conclusion that the only evidence which in any way bears upon the question of waiver is the evidence which shows that appellant did not tender back said premium notes until the 6th day of July, 1912, and did not keep such tender good by depositing them with the clerk of the court in which said cause was pending until the 30th day of June, 1914, and never at any time tendered back any money on account of the payment of such quarterly premiums, all as stated in such special findings.

[1] Appellant contends that such facts do not constitute a waiver of the defense of suicide, for the reason that no tender of either money or premium notes was required under the terms of the policy in suit. This seems to be the turning point in the case, and its determination will be decisive of the question involved.

It is conceded that the insured committed suicide within one year from the date of the policy. The act of suicide brought into operation provision No. 10 of the policy, which reads as follows:

“If the insured shall commit suicide within one year from the date hereof, while sane or insane, this policy shall be null and void.”

Appellee's first contention under such provision is that the act of suicide on the part of the insured rendered such policy void from its inception, but that before appellant could avail itself of such defense it was necessary to tender back the quarterly premium received in cash, and also the three quarterly premium notes, or cash in lieu thereof. It will be noted that all of the premiums were paid prior to the suicide of the insured, and hence prior to the appellant's knowledge of the act which rendered such policy void. The policy by its language does not impose any obligation on appellant to refund any portion of the premium paid. Nevertheless we agree with appellee that, if such policy was void from its inception, by reason of the suicide of the insured, then the tender back of all premiums received, regardless of their form, would have been necessary in order to defend on such ground, as a failure so to do within a reasonable time after knowledge thereof would have constituted a waiver of such defense. It is, no doubt, true that the procuring of insurance with the intention to commit suicide is a fraud on the insurer, and renders the policy void from its inception, as contended by appellee, but in this case there is no such charge, and no evidence of any fact constituting fraud, or from which such an inference can be drawn. Appellant did not so treat the policy, or attempt to defend on such ground, but apparently proceeded on the theory that the policy was valid until rendered void by the act of suicide. Appellee seeks to draw a distinction between policies which provide that suicide within one year “is a risk not assumed” and those which provide that in case of suicide within one year the policy “shall be null and void.” The claim is made that in those of the former class it would be proper to hold that the risk was carried until the act of suicide, and hence a return of premium was not necessary in order to defend, but in those of the latter class no risk was...