241 F. 278 | S.D. Iowa | 1912
Remarks by the Court on Motion of the Defendant for Peremptory Direction of Verdict.
Neither party having further testimony to offer, the defendant moves the court for a peremptory direction to the jury to return a verdict for the defendant.
There is no proposition of law better settled than that such a motion should be sustained or overruled accordingly as to whether the court is of the opinion that a verdict otherwise given should be followed by judgment thereon, or order such verdict be vacated on motion for new trial. The Iowa courts so hold, and such holding is uniform in all the courts of the United States. The reason of the rule is logical and apparent. It would be folly and a mere waste of time, adding materially to the expense of litigants, if a verdict should be received from the jury, at once followed by an order vacating the same. The province of the jury is to make findings of fact on controverted and material questions of fact. If reasonable men would differ as to such a verdict, it is a question for the jury. If it is apparent that the jury can otherwise find, such motion should be overruled. These fundamental propositions, conceded by all, must control me in the ruling I am about to make.
The plaintiff herein is the beneficiary under a certificate issued by the defendant August 2, 1909, pursuant to the application of deceased made a few weeks prior thereto. The insured died on January 4, 1911.
The by-laws are exceedingly technical, and too often too technical to meet the approval of men of experience, on almost everything except as to the payment of premiums or assessments. Usually there are many times more technicalities in, such companies by way of defensive matters than are to be found in the policies issued by insurance companies. But those matters have nothing to do with this case except to invoke the well-known rule that, if the by-laws and certificate are susceptible of two or more constructions, the court must adopt that one construction most favorable to the insured and the beneficiary. I mention these matters because of the defenses pleaded under section 6 of article 6 of the by-laws, one of which reads that there shall be no liability'“from any injury resulting from the discharge of firearms when there is no eyewitness to the discharge, except the member himself.” There are five or more defensive matters in that section. In some instances such defensive matters refer specifically to death; but it will be observed that as to the clause just quoted the word “injury” is used, and the word “death” is not used. I am partially — and only partially — inclined to believe that observing the proper rule of construction, as before stated, it means, in a case of alleged liability, where there is an injury followed by death. But without ruling specifically on the question, I pass that by.
The burden of proof is on the plaintiff to show that the injury resulting in a death was accidental. There was no eyewitness. The presumption of the law is, as gained from long time experience, and the belief existing in every man’s mind, that all persons of sound mind, whatever the age may be, desire to live. A person old in years, fully believing in a future state of happiness, may truthfully say that he is ready to die; but he will also truthfully say that he does not yet desire to die. That presumption stands as an affirmative- fact in favor of the insured, but it is not a conclusive presumption. It is to be weighed
In these cases the contest is unequal. On one side a lady of limited means, quite likely, although splendidly represented by counsel of great ability. On the other side is a company with abundant means to either pay the loss or make resistance, represented by counsel of equal ability. But such facts are in no sense controlling and ought not to be. The question here is one of contract; both plaintiff and her husband on one side, and the company on the other, being parties thereto. Courts do not make these contracts. The parties themselves enter into the contractual relation, and it is for the courts only to construe the contract and give such contract effect. There is but one thing for the court "to do, namely, recognize this contractual defense, made to appear by the testimony and concerning which there is no controversy as to the material facts in this case.
There will be a verdict by the jury in favor of the defendant, and judgment thereon. To all of which plaintiff excepts, and is given 90 days for bill of exceptions.