Victoria Soules v. the Brotherhood of American Yeomen

• Decision Date: 19 March 1909
• Court: North Dakota Supreme Court

120 N.W. 760

19 N.D. 23

VICTORIA SOULES v. THE BROTHERHOOD OF AMERICAN YEOMEN

Supreme Court of North Dakota

March 19, 1909

Appeal from Stutsman County Court; Burke, J.

Action by Victoria Soules against the Brotherhood of American Yeomen. From a judgment for plaintiff and an order denying a new trial, defendant appeals.

Affirmed.

R. G McFarland, J. H. Fraine, and S. L. Glaspell, for appellant.

Intention to show mistake in proof of loss must be pleaded. Travelers Ins. Co. v. Robbins, 27 U.S. App. 547; Travelers Ins. Co. v. Melick, 65 F. 178; Mutual Bene. Life Assoc. v. Newton, 22 Wall. 32; Keels v Mut. Res. Fund Life Assoc. 29 F. 198-201; McMaster v. Ins. Co. of N. A. 55 N.Y. 222; Parmalee v. Hoffman F Ins. Co., 54 N.Y. 193.

Burden is on plaintiff to disprove suicide. Home Benefit Assoc v. Sargent, 142 U.S. 691; Ingram v. National Union, 72 N.W. 559; Sartell v. Royal Neighbors of Am. 88 N.W. 985; Chambers v. Modern Woodmen, 99 N.W. 1107; Hale v. Life Ind. & Inv. Co., 68 N.W. 182.

Failure to produce documentary evidence in one's possession warrants the presumption that it is prejudicial to him concealing it. Agen v. Met. Life Ins. Co., 80 N.W. 1020; Secs 5952 to 5961, Rev. Codes N.D. 1905; Satterlee v. Modern Brotherhood, 15 N.D. 92, 106 N.W. 561; Brady v. United Iife Ins. Assn., Fed. 727; Mead v. N.W. Ins. Co., 7 N.Y. 530.

If suicide is established beyond controversy defendant is entitled to a verdict. Rev. Codes 1905, Sec. 5952, 5961.

If statements in application are made warranties, such effect must be given them. Johnson v. Dak. F. Ins. Co., 1 N.D. 167, 45 N.W. 799; Satterlee v. Modern Brotherhood, supra; Mead v. N.W. Ins. Co., supra; Brady v. United Life Ass. 60 F. 727; 25 Cyc. 811.

John Knauf and M. C. LaSell, for respondent.

Statements in proofs of loss do not bind as to person who did not make them. Mutual Benefit L. Asso. v. Newton, 22 Wall. 32, 32 L.Ed. 793; Parmalee v. Hoffman Fire Ins. Co., 54 N.Y. 193; McMasters v. Pres. & C. Ins. Co., 55 N.Y. 229.

Plaintiff can explain and contradict statements in proofs of death. Beckett v. N.W. Mas. Aid Assn., 69 N.W. 923; Bentz v. N.W. Aid Assn., 41 N.W. 1037; Keels v. Association, 29 F. 198; Sargent v. Association, 35 F. 711; Waldeck v. Ins. Co. 10 N.W. 88.

Only a certificate of attestation required by state renders copies of court record admissible. Secs. 905, 906, U. S. Rev. S. 1887, (2nd Ed.); Bank of Alabama v. Dalton, 9 How. 522, 13 L.Ed. 242; Sykes v. Beck 12 N.D. 260, 96 N.W. 844; 1 Gr. on Ev. Sec. 504, 506 (14th Ed.); Carpenter v. Strange, 141 U.S. 87; Church v. Hubbert, 2 Cranch 187; Pugh v. Schlindler, 86 N.W. 515; Hurley v. City of St. Paul, 86 N.W. 427.

Misstatements of fact, whether called warranties or misrepresentations, are misrepresentations. White v. Prov. S.W. L. Assoc. 27 L.R.A. 398; Mut. Life Ins. Co. v. Simpson, 28 L.R.A. 765; Barnes v. F. Mut. Life Asso. 45 L.R.A. 264.

OPINION

MORGAN, C. J.

This is an action to recover upon a policy of fraternal life insurance issued to the plaintiff's husband for her benefit on the 25th day of July, 1899, for the sum of $ 2,000. The complaint alleges the payment of the premiums and the issuance of the policy or certificate of insurance and the subsequent death of the insured on the 22nd day of July, 1902, and that proof of death was furnished to the defendant as required by the certificate of insurance and rules of the company, and that payment of the amount has been refused by the defendant, although duly demanded. The answer alleges as defenses (1) that the insured made false answers to certain questions propounded to him in his application for insurance, and that such statements were made warranties by the terms of the application and were false, and rendered the policy null and void; (2) that the insured came to his death through suicide, which under the terms of the policy rendered it null and void. The action came to trial on the 16th day of January, 1907, before a jury which brought in a verdict in favor of the plaintiff for the full amount. A motion for a new trial was duly made upon statutory grounds and was denied, and judgment rendered on the verdict. On the 23d day of September, 1907, the defendant appealed from the judgment and from the order denying the defendant's motion for a new trial. There are 48 assignments of error, but the points especially urged in the brief and on oral arguments are: (1) That the verdict was not sustained by the evidence because the same shows that the insured came to his death through suicide. (2) Error at law in the admission and rejection of evidence, and errors in refusing to give requested instructions. (4) The charge given was prejudicially erroneous. (5) Error in not granting an extension of time for the filing of exceptions to the charge. (6) Error in refusing an application to amend the motion for a new trial to include a new ground, to wit, newly discovered evidence. (7) Insufficiency of the evidence to justify the verdict. We will consider these assignments in the order given.

On the question of the cause of death, it may be said that the application and the policy provided that if the insured came to his death through suicide, whether sane or insane, the policy would be null and void. It is claimed by the appellant that the evidence shows that the cause of death was suicide. The jury was fully instructed on the question, and was told that, if the evidence showed that death was caused by suicide, the verdict must be for the defendant. Upon a careful review of the evidence, we are satisfied that the verdict is not against the weight of the evidence; whereas, there are circumstances indicating suicide. There are also circumstances showing that death may have been caused by an assault with a hammer, on which there was blood when it was found close to the body of the insured when his death was discovered. It is clear to us that the verdict should not be disturbed under such circumstances, as the question is one for the jury. When found dead, it appeared that he might have been struck with a hammer from the condition of his head, and a razor was found near his body which did not belong to him, and it may have been that his throat had been cut by some one else with this razor. There was some evidence also that the insured had had some trouble with one of his men who had threatened to get even with him. In this state of the record we would not be justified in saying that the verdict is not sustained by the evidence.

Great stress is laid upon the fact that in the proof of death sent to the company it was stated on information and belief that death was caused by suicide. The claim is made by the appellant that the fact so stated as to the cause of death cannot be contradicted by the beneficiary, in the absence of a pleading showing that the proof stated the cause of death to be suicide through a mistake. This contention cannot be sustained. There are cases holding that the beneficiary will be permitted to show that statements made in proofs of loss or death were made by mistake except on a showing that they were made under such circumstances as to have misled the defendant. But we find no cases, and none are cited, holding that, if a mistake is made in a proof of death as to the cause of death the same cannot be contradicted without first pleading the mistake. If the jury are satisfactorily shown that the contents of the proof of loss or death were mistakenly made, the misstatement is not material unless there is an estoppel, but there is nothing in the record to show grounds for such an estoppel, even if the proof had been directly made by the plaintiff. The plaintiff, however, did not submit the proofs in this case. She wrote the defendant a letter informing it of her husband's death and gave the number of the policy, and demanded payment. The company answered this letter, but sent no blanks to her for proof of death, but stated in the letter that the local lodge would attend to the matter of proof. Proof of death was thereafter submitted to the company by the local lodge without conference with the plaintiff, and the same was retained by the company, and the plaintiff was never asked to submit anything additional. So far as the plaintiff is concerned, all defects have been waived. Under such circumstances, we see no good reason for now permitting the company to insist or show that the proofs are incomplete or insufficient. It would not be proper to hold the plaintiff to be bound by any statement in such proof. The evidence does not show that she was aware that the cause of death had been stated in the proof to have been suicide. The burden of showing that death was attributed to suicide remains on the defendant, notwithstanding such statements in the proof. The local lodge was not the agent of the plaintiff. It was requested by the defendant to submit proof of death. We do not think that plaintiff should be bound by any statements in the proof, although she says that she authorized the local lodge to submit proofs. By this we think that she must have meant that she acquiesced in the action of the local lodge in assuming the duty of submitting the proofs at the request of the company. The following cases sustain the foregoing principles: Home Benefit Ass'n v. Sargent, 142 U.S. 691, 12 S.Ct. 332, 35 L.Ed. 1160; Beckett v. N.W. Masonic Aid Ass'n, 67 Minn. 298, 69 N.W. 923; Bentz v. N.W. Aid Ass'n, 40 Minn. 202, 41 N.W. 1037, 2 L.R.A. 784.

It is claimed by the appellant that the insured made false answers to the questions propounded to him on his application for the policy, and that such false answers to such questions rendered the policy void on the ground that by the terms of the policy such answers were made warranties. The questions which the...