152 Mich. 322 | Mich. | 1908
This case is a companion to the case of Ferris v. Loyal Americans of the Republic, ante, 314, and is in all material matters similar to that case. It was tried before the same judge, at about the same time, on
“ I charge you that before you can find a verdict for the plaintiff, in this case, you must find by preponderance of the evidence that the cut and wound did not hasten or accelerate his death, and was not a contributing cause thereof, otherwise your verdict must be for the defendant, no cause of action.”
This raises a question respecting the burden of proving the cause of death. We did not consider it in the other case because defendant’s counsel conceded that the burden rested upon their client. The contention of defendant is that the burden of proof was upon plaintiff to show that the cause of death was not within the suicide proviso of the certificate. The provision in the constitution of defendant company relative to suicide in force at the time of the death of Mr. Ferris, and which provision is to be considered as included in the insurance certificate, reads as follows:
“Sec. 145. If a benefit member commits suicide, whether sane or insane, voluntary or involuntary, there shall be payable to the beneficiaries entitled thereto five per cent, of the face of the certificate for each year he shall have been continuously a member of the society and after 30 years of continuous membership the certificate shall be payable in full.”
This question has been frequently before the courts in both life and fire insurance cases. From an examination of these cases, it appears that the general rule of law has been established, that provisions such as the one under discussion have been held to be conditions subsequent, and therefore that the burden of proving that the case comes within the proviso or condition of the policy being
“ I do not charge you that these estop the plaintiff from showing that the cause of death was otherwise, but I do charge you that they are admissions by her, and were in terms adopted by her, and that unless those admissions are' explained, they must stand, and can and should be considered by you in determining what was the true cause of death and whether or not the wound inflicted by the hand of the deceased did not contribute to hasten or accelerate his death.”
This request is somewhat different from the one relating to the same subject considered in the other case, but our reasoning in that case shows that it would have been incorrect to charge the jury that plaintiff could not recover unless those admissions were explained. The request should not therefore have been given. In so far as it stated the correct rule it was covered by the general charge of the trial court.
The judgment is affirmed.