109 F. 847 | 6th Cir. | 1901
having made the foregoing statement of the case, delivered the opinion of the court.
1. It is contended that the evidence established beyond doubt that the deceased committed suicide, and that the court should, for that reason, have instructed the jury that the plaintiff was not entitled to recover. The evidence upon which this peremptory instruction wras asked tended to show that for some time prior to his death Burton had been in straitened financial circumstances; that his property was heavily incumbered; that his house, which was mortgaged, and his personal property, which had been seized on execution, were about to be sold; that he had just before been making scremious efforts to borrow money to tide him over his distress, but had failed; that he had forged a mortgage, and the certificate of acknowledgment thereof, on which he had made an attempt to borrow money; that he had, a year before, borrowed money upon false representations in regard to the freedom of his property from incumbrances; that he was being threatened with prosecution for these offenses; that he had four daughters living at home with him, who were dependent upon him for support; and that just before his death he had been making efforts to secure as much accident insurance as possible in addition to that which he was then carrying, and had succeeded in effecting enough to make in all $10,000. But it was also shown that he was a man of sanguine temperament, that he had been accustomed to keep considerable insurance upon his life and against accidents, and that after his death his property sold for enough to pay off all his debts. At the time of his death he was returning home from an ineffectual effort to raise money to save his home and personal property from forced sale. He was last seen before his injury upon, the platform of the car on which he was riding, and not long afterwards was found by the side of the track, mortally injured. Xo doubt these circumstances, taken together, were well calculated to excite grave suspicion that the assured had thrown himself from the train with intent to destroy himself, but
2. It is further contended here that the jury should have been instructed that the burden of proof was upon the plaintiff to prove that the deceased did not come to his death in consequence of, or while suffering from, vertigo, fits, or other disease. But we are unable to find in the record any request-by the plaintiff in error to instruct the jury upon this point, or any exception to such part of the charge as might inferentially imply the contrary of what is now insisted upon as the correct theory upon the subject. This being so, the question is not before us. It is useless to cite authority upon a proposition so well settled. Moreover, the bill of exceptions indicates that, when ,the case came to go to the jury, it was, without objection by either party, reduced by the court, so far as the facts were involved, to the single question whether the assured came to his death by suicide or not.
3. Another supposed error assigned is that the probate of the will revoked the plaintiff's letters of administration, and that the amendment by which he was permitted to proceed with the case as administrator with the will annexed operated to the effect of enabling him to bring a new suit, and that the six months allowed for bringing the action had expired before the amendment was made. If this question had arisen upon the early common law of England, it might be attended with difficulty on account of the widely different character of an executor from that of an administrator at that time. The executor derived his authority from the will. He was not an officer of the court, but was regarded as a trustee for the purposes declared by the testator, and could, before probate, do nearly all things required for the settlement of the estate except that he could not bring suits in the courts. The probate was for the purpose of definitely determining his character, and establishing it once for all, and enabling him to make profert of his authority in the manner required by the practice of the courts. Ordinary administration was in derogation of his rights as executor, which could not be thus taken away. And it was at one .time held that such an administration was void upon the subsequent production and probate of a will. But later on the rule was modified so as to apply only to those cases in which administration had actually deprived the executor of some right, and not to those cases in which only the rights of other persons interested in the estate were concerned, in which
The Tennessee cases relied upon — Crofford v. Cothran, 2 Sneed, 491, and Flatley v. Railroad Co., 9 Heisk. 230 — are not in point. In the former case the plaintiff had been permitted by amendment to change his suit from one in assumpsit to' one in debt. Different defenses are open upon differing pleas in the one form of action from those in the other, and usually different limitations for actions are prescribed. In the other case a suit had been brought by a party who had no right at all to sue, and by the amendment a new party, who, in fact, had the right of action, was brought in. It is easy to see that there was no continuity of the cause of action, for none had:existed- during the-time when the suit was by
“The question is not whether the suit could have been maintained in. Lee’s name, nor whether Lee was guilty of a misdemeanor in bringing the suit, but whether it should abate because of Lee’s want of authority to prosecute it. The defendant was in court to answer to a cause of action in favor of the estate of Hadson, which could only be prosecuted by the administrator of the estate; and, Person having been appointed and qualified as such administrator in the place and stead of Lee, the court substituted him for Lee as plaintiff in the case.”
The present case is distinguishable from that class of cases, of which Sicard v. Davis, 6 Pet, 124, 8 L. Ed. 342, is a leading, one.
There is another view upon which it should seem that the defense founded on the limitation of the time contained in the policy within which suit must be brought ought not to be sustained. When the contract of insurance was made, the company knew (as it must be presumed) that the law of Tennessee provided that in the suit which it required to be brought the court would be authorized to permit new parties to be brought in by amendment. It was in the contemplation of the parties that this might happen, and it could not have been expected that such a suit would not be subject to the general regulation applicable to all suits. How, the statute was enacted for the very purpose of mending all such defects in the constitution of the suit as would permit it to go on to judgment, and one of such defects was that of proper parties. Manifestly, it was intended that the suit should continue, and not abate. If the parties are held bound to have contemplated such a contingency as the exercise of the power of the court to permit the amendment, the defendant ought not now to be heard to say that a suit lawfully brought to recover upon this policy for the benefit of the estate should be defeated by the event which made the amendment necessary and proper. It would be difficult to conceive of a case where such an amendment would be more just and proper. The defendant imposed a short limitation. By it the suit could not be brought within three months, but must be within six months. Its object, as we must suppose, was to enable the company to gather the evidence, and prepare for its defense, while "the matter was fresh, and to have a speedy determination of its liability. This object was accomplished by the commencement of the suit, and it was a suit which, when begun, suffered no delays which were not incident to other suits which might be brought in the same court. If such an amendment could not be made except with the consequences of a new suit, then brought, the defendant in such a case would escape all liability if it should happen that the will should not be found within six months after the death of the insured, un
4. A question was raised by the defendant upon the pleadings in respect to the effect of the alleged falsity of the misrepresentation of the assured in his application for insurance that he had never had fits or disorders of the brain; the contention of the defendant being that, whether or not the representation was made with an actual intent to deceive, or the existence of the fact increased the risk of loss, the falsity of the representation defeated the policy. This contention was made upon the ground that section 22 of chapter 1(50 of the Acts of Tennessee of 1895, declaring that such misrepreseniation, if not made with intent to deceive, and the matter thereof did not increase the risk of loss, should not be deemed material, or make the policy void, was in violation of section 8 of article 11 of the constitution of Tennessee, which reads as follows:
‘The legislature shall have do power to suspend any general law for the benefit of any particular individual, nor to pass any law for the benefit of individuals inconsistent with the general laws of the land; nor to pass any law granting to any individual, or individuals, rights, privileges, immunities, or exemptions, other than such as may be by the same law extended to any member of the community, who may be able to bring himself within the provisions of such law.”
The ruling of the court, as we' gather from the record, upheld the validity of "the statute, aud this ruling is now assigned as error. It is insisted that the statute in question is “a partial law, and vicious class legislation,” because, as is said, it exempts from its burdens life and casualty insurance companies conducted on the assessment plan. But the gravamen of the complaint is rather that the statute imposes a burden upon this insurance company which is not imposed upon other companies engaged in a similar business. Aud it is charged that the classification of life and casualty insurance companies doing business on the assessment plan on oue hand and mutual fire insurance companies, life and casualty insurance, and all other insurance companies on the other, and denying a privilege to one which it gives to the other class, is without any imaginable reason or justification. In so far as the law can he said to cast a burden upon mutual fire insurance companies which it lifts from “mutual life and casualty insurance companies,” the mutual fire insurance companies themselves are the only companies who are in a position enabling them to raise the objection, if it be one. The defendant in the court below, not being a mutual fire insurance company, has no legitimate ground for complaint that another company is unjustly burdened. Only the party injuriously affected by unconstitutional legislation can be heard to allege its invalidity. The question, therefore, comes to this: whether it was competent for the legislature to change the rule of law in respect to the liability of a casualty company insuring for a fixed premium upon its policies thereafter to be issued, without at the same time
“Whether [it was] just or unjust, reasonable or unreasonable, to all concerned, was certainly a mere matter of speculation, proper for the consideration of the society, and which no individual is at liberty to complain of, as ho is bound to consider it as liis own individual act. Every member in fact stands in the peculiar situation of being party of both sides, — insurer and insured.”
We think there was enough of dissimilarity in the character of the business of insurance for a fixed premium, and that of mutual insurance to justify the legislature in laying down a rule regulating the former without also imposing it upon the latter. These views lead to an affirmance of the judgment. Judgment affirmed.