Union Cent. Life Ins. Co. v. Skipper

• Decision Date: 17 March 1902
• Docket Number: 1,565.
• Citation: 115 F. 69
• Parties: UNION CENT. LIFE INS. CO. et al. v. SKIPPER.
• Court: U.S. Court of Appeals — Eighth Circuit

115 F. 69

UNION CENT. LIFE INS. CO. et al. v. SKIPPER.

No. 1,565.

United States Court of Appeals, Eighth Circuit.

March 17, 1902

J. W House and Lawrence Maxwell, Jr., for plaintiffs in error.

W. S McCain (Farrar L. McCain, U. M. Rose, W. E. Hemingway, and G B. Rose, on the brief), for defendant in error.

This case comes on a writ of error from the circuit court of the United States for the Eastern district of Arkansas. The laws of that state provide (Sand. & H. Dig. Ark. Sec. 4214) that all fire, life, and accidental insurance companies doing business in the state shall annually give a bond to the state, with sureties to be approved by the auditor of the state, in the sum of $20,000, 'conditioned for the prompt payment of all claims arising and accruing to any person during the term of said bond, by virtue of any policy issued by any such company, * * * upon the life or person of any citizen of the state or upon any property situated in this state, and such bond shall be annually renewed. ' On June 3, 1895, the Union Central Life Insurance Company, the plaintiff in error, an Ohio corporation, executed a bond, under the provisions of this statute, with a view of doing business within the state of Arkansas, which bond was duly filed and approved in the proper office. On August 23, 1895, William F. Skipper took out two policies of insurance on his life in the Union Central Life Insurance Company, each in the sum of $5,000, which by their terms were payable to Malissa F. Skipper, the wife of said William F. Skipper, the defendant in error, which policies, by their terms, were payable within 60 days after the death of the insured, and proof made thereof to the insurer. On May 13, 1896, during the period covered by the aforesaid bond, William F. Skipper was either murdered or committed suicide in Drew county, Ark., where he resided. On August 20, 1898, the present action was instituted in Drew county Ark. The declaration thus filed counted upon the aforesaid bond which had been executed by the defendant company on June 3, 1895, and alleged, as a breach of the condition of said bond, that the company had failed to pay the claims arising and accruing under the aforesaid policies. The case was removed to the federal circuit court for the Eastern district of Arkansas, where a trial took place, which resulted in a verdict against the defendant company. It seems that, before the present action was instituted on the bond, two other actions had been commenced against the defendant company to recover on the policies, one of which was commenced on December 2, 1896, and dismissed on February 19, 1897, and the other of which actions was begun on February 20, 1897, and was dismissed

on August 16, 1898, four days before the present action was instituted.

Before CALDWELL, and SANBORN, and THAYER, Circuit Judges.

THAYER Circuit Judge, after stating the case as above, .

The principal issue of fact which was litigated in the lower court was whether William F. Skipper was murdered or committed suicide; it being conceded that, by the terms of the policy, there could be no recovery if he died by his own hand. This issue of fact was submitted to the jury, who decided it adversely to the contention of the defendant company, finding that the deceased was murdered. In this court an elaborate brief has been filed with a view of showing that the case should have been withdrawn from the jury on the ground, among others, that, when the evidence is fully considered, but one conclusion can be drawn therefrom, and that is that the deceased committed suicide. The record shows, however, that by consent, or at least without objection on either side, both parties called witnesses and asked them to express their opinions, as experts, whether, in view of all the circumstances surrounding the death of the deceased and the finding of his remains, he took his own life or was murdered. Opinions were expressed both ways on this question by witnesses for the respective parties, and the issue was decided by the jury on the strength of such testimony, for which reason it cannot be successfully contended here that the verdict is unsupported by the evidence. In making this statement, we would not be understood as admitting that, but for the expert testimony, there would have been no evidence tending to show that the deceased was murdered. We express no opinion on that point. It is sufficient to say that upon this record the issue whether death was occasioned by suicide was necessarily submitted to the jury, and the finding upon that issue by the jury is conclusive.

It is argued that the case should have been taken from the jury for the further reason that the claim sued upon is not within the terms of the bond on which the action is based. The bond employs the language of the statute, which is quoted above in the statement, and bound the obligors to pay 'claims arising and accruing' during the year commencing June 3, 1895, and ending June 3, 1896. It is said that as Skipper died on May 13, 1896, and the loss was not payable until proof of his death was submitted, and as such proofs were not submitted until after June 3, 1896, the loss did not both arise and accrue within the lifetime of the bond, and the obligors are not liable. We think that this proposition is not tenable. If the words 'arising and accruing,' as used in this bond, are construed as meaning something different,-- for example, if the word 'arising' means when death occurs, and the word 'accruing' means when the loss, by the terms of the policy, becomes payable,-- and if it be true that a loss must both arise and accrue within the lifetime of the bond, to render the obligors therein liable, then it is obvious that it would often happen that losses would occur under policies which would not be within the terms of any bond, because they would not both arise and accrue while it was in force. This would happen as respects all losses which occur during the last 60 days before bonds expire, as nearly all policies of insurance contain provisions giving the insurer 60 days within which to pay losses after proofs have been furnished. The legislature cannot be presumed to have intended such a result, and this is a sufficient reason for rejecting the construction contended for, and seeking for some other which is more reasonable and more in harmony with the presumed intention of the lawmaker. We may either assume that the word 'and' is used in the statute, as it frequently is, in a disjunctive sense, and that the legislature intended to make the obligors in such bonds as the one sued upon liable for any loss where either the death occurs, or the loss becomes payable, by the terms of the policy, during the lifetime of the bond. Or we may assume that the words 'arising and accruing' mean the same thing; one word being used as explanatory of the other; the intent being to say that the obligors in such bonds shall be liable to pay all losses that 'arise or accrue' by reason of deaths which occur during the period covered by the bond. We incline to the opinion that the latter is the correct interpretation of the statute, and that the time when a death occurs fixes the liability on this class of bonds. We cannot assent to the view that these words refer to different events,-- the one to the death of the insured, and the other to the time the loss is payable by the terms of the policy,-- and that both of these events must occur during the life of a bond, to render the obligors therein liable. The lawmaker, in our judgment, had no such purpose in view when the statute was framed.

It is also argued that the case should have been taken from the jury because the policies which were issued on the life of Skipper contain this provision, 'No suit to recover under this policy shall be brought after one year from the death of the insured. ' As the present action was brought on August 20, 1898, and as Skipper died on May 13, 1896, it is urged that the action is barred by the aforesaid provision found in the policies; and in support of this proposition our attention is particularly directed to the decision in Riddlesbarger v. Insurance Co., 7 Wall. 386, 19 L.Ed. 257, and other kindred cases, wherein the validity of such provisions, limiting the right to sue on policies of insurance, have been upheld. This agreement between the parties as to the time within which suits should be brought relates, in our opinion, to actions on the policies, and to such actions only. The phrase 'no suit to recover under this policy' means the same, in our judgment, as 'no suit to recover on this policy. ' The parties were contracting with reference to actions on the policies themselves, and not with reference to actions which might be brought on an independent obligation like the bond in suit, which the state, in the exercise of an undoubted power to determine on what conditions it would permit foreign insurance companies to engage in business within the state (Paul v. Virginia, 8 Wall. 182, 19 L.Ed. 357; Insurance Co. v. Daggs, 172 U.S. 557, 19 Sup.Ct.

281, 43 L.Ed. 552), saw fit to exact from foreign insurance companies doing business in the state, to compel them to promptly settle losses which might become due at any time to citizens of the state. When the state, in the exercise of such a power, compelled the defendant company, as a condition precedent to engaging in business in the state, to give a bond to the state, conditioned that it would promptly pay such losses as it might sustain within the state, it did not limit the time within which parties entitled to sue on the bond so executed should bring their actions, but left the matter to be regulated by the general statutes of limitations then in force applicable to such instruments. The bond...