134 Minn. 192 | Minn. | 1916
Action on a policy of accident insurance on the life of John McAlpine in which his wife, the plaintiff, was the beneficiary. There was a verdict for the defendant. The court granted the plaintiff’s motion for a new trial. The defendant appeals from the order granting it.
The motion for a new trial was-based upon several grounds, including that of the insufficiency of the evidence to sustain the verdict. The court granted the motion, upon the ground that it erred in charging the jury relative to the effect upon the policy of a misrepresentation or misstatement by the insured of his physical condition. In its order it stated that it was granted exclusively upon the ground of errors occurring at the trial. The following questions are presented:
(1) Whether on this appeal the plaintiff may support the order by showing errors, properly raised, other than the one for which a new trial was granted.
(2) Whether the court erred in instructing the jury relative to the effect of a misrepresentation or misstatement by the insured of his physical condition.
(3) Whether the court erred in refusing to require the defendant to elect whether it would rely upon its claim of suicide or upon its claim that the beneficiary was responsible for the death of the insured.
(4) Whether the court erred in charging the jury that the burden of proving that the insured was killed by some third person other than the beneficiary was upon the plaintiff.
(5) Whether there were other errors justifying the granting of a new trial.
If the first receives a negative answer those other than the second do not require consideration. If it is answered in the affirmative all are for consideration.
“Any misrepresentation made by John MeAlpine in the negotiation of the policy sued upon shall not be deemed to be material nor shall the same lefeat recovery on the policy or prevent its attaching unless you find that íe, J ohn MeAlpine, made the same with intent to deceive and defraud the lefendant, or unless the matter misrepresented increased the risk of loss.”
This is the substance of E. L. 1905, § 1623 (G. S. 1913, § 3300), which s as follows:
“No oral or written misrepresentation made by the assured, or in his lehalf, in the negotiation of insurance, shall be deemed material, or deeat or avoid the policy, or prevent its attaching, unless made with intent o deceive and defraud, or unless the matter misrepresented increases the isk of loss.”
It is claimed by the plaintiff that this section does not apply to an aeident policy, but that section 1693, which reads as follows, is applicable:
“In any claim upon a policy issued in this state without previous Ledical examination, or without the knowledge or consent of the insured, ’, in case of a minor, without the consent of his parent, guardian, or ;her person having his legal custody, the statements made in the applicaon as to the age, physical condition, and family history of the insured tall be valid and binding upon the company, unless 'wilfully false or inntionally misleading.” E. L. 1905, § 1693 (G. S. 1913, § 3467).
Upon the motion for a new trial the court was of the opinion that etion 1693 appled and that it was in error in charging section 1623.
There is a kind of life insurance where no medical examination, such as is usual with life insurance companies, is required, and which is sometimes taken without the knowledge of the insured. It goes under the general designation of industrial life insurance. It is not accident insurance, nor casualty insurance, nor workmen’s compensation. The premiums are small, often five cents a week or some multiple thereof, or other small amount paid monthly. The average amount of the insurance is small — hardly more than sufficient to pay burial expenses and give slight temporary relief. The agents of the insurance company solicit the insurance and call weekly or monthly and make collections. Sometimes insurance is taken, or in the past it has been taken, without the knowledge of the insured. The companies engaging in it write child insurance. In a way the insurance is a sort of family insurance intended as a protection against family misfortune, or as an inducement to thrift and saving, and often all members of the family are insured. While thel periodical premiums are small the insurance is not cheap. On the contrary, owing partly to the character of the risks and lack of diserim-| ination in taking them and partly to the cost of administration, it is expensive. With the particular characteristics of it we are not now concerned. It is enough to know that it is a kind of insurance in common use and| familiar to legislative bodies and of the general character stated. Then are millions of this insurance in Minnesota.
Detailed information relative to it may be obtained from the following sources: Insurance (Industrial) 11 Americana; 14 Ene. Brittanica 671; Henderson, Industrial Insurance, 149; Willoughby, Workmen’s Insurance, 212; Improvements in Industrial Life Insurance, 15 Am. Jour Soc. 478-501; Dryden, Life Insurance, 19-117; Zartman & Price, YaL Readings in Insurance, 384-399; Hoffman, History of Prudential In surance Co.; Industrial Insurance, 26 Ann. Am. Acad. Pol. & Soc. Sci 103; Bunyon, Law of Life Assurance, 308-323; Macgillivray, Ins. Law 22; 6 Testimony Legislative Insurance Investigating Committee, Nei
There has been some actual and more threatened hostile legislation and some regulative legislation. At the best it is expensive insurance,
We take it from the record that counsel for the defendant did not bring to the attention of the trial court the existence of industrial life
In view of the construction adopted we find it unnecessary to discuss the question whether the plaintiff having invited the instruction given can complain of error in giving it. The settled genera] rule is that a party cannot avail himself of invited error. See 3 Cent. Dig. App. & Err. §§ 3603-3604; 3 Dec. Dig. App. & Err. § 883 (1), 883 (13); 3 E. C. L. p. 338, § 198; 3 Enc. PI. & Pr. 533. We only remark that, conceding the right of the court to review, in a special case, the correctness of an instruction at the instance of a party who has procured it to be given, a new trial should not be granted unless the charge was substantially wrong and apparently prejudicial in result. It is probable that the claimed misstatement or misrepresentation was not the important question in the ease from the viewpoint of the jury.
The plaintiff claimed in her complaint that the death of McAlpine resulted from accidental means. To recover it was necessary to prove it. McAlpine was found dead in the basement of his home between three and four o’clock in the morning of August 15, 1913, with a fatal bullet wound in his head. His revolver was close by with one chamber empty. The circumstances were not conclusive. As between accident and suicide the presumption favored accident. The defendant alleged suicide and alleged further that the death of the insured was caused by the beneficiary. In either event the plaintiff could not recover. At the opening of the case the plaintiff moved that the defendant be required to elect on which it would rely upon the ground that the two were inconsistent, This motion was denied and the plaintiff claims it was error justifying the order granting the new.trial. Our statute is as follows:
“The defendant may set forth by answer as many defenses and counterclaims as he has. They shall be separately, stated, and so framed as to show the cause of action to which each is intended to be opposed.” E. L. . 1905, § 4133 (G. S. 1913, § 7758).
It is sometimes said that whether both defenses can be true is the test of their consistency. An examination of the cases shows that whatever the test, defenses are not often held inconsistent. Thus it is held not inconsistent to deny a slander and allege matter in mitigation. Warner v. Lockerby, 31 Minn. 421, 18 N. W. 145, 821. Or to deny the rendition of services by the plaintiff and allege payment. Steenerson v. Waterbury, 52 Minn. 211, 53 N. W. 1016. Or to deny the execution of a note and allege that it was procured by fraud. Bank of Glencoe v. Cain, 89 Minn. 473, 95 N. W. 308. Such defenses in general amount to a general ^denial coupled with a plea in confession and avoidance. ^There is an inconsistency in fact between a general denial and a plea in confession and avoidance; but the inconsistency does not prevent the interposition of both. When the rule of consistency, technically applied, prevents the interposition of a fair defense, it must yield to the insistent demand of the law that a party be given a hearing on all his causes of action and all his defenses. & (This is the paramount consideration. Substantive rights must not be sacrificed to preserve a rule no more important and no better accredited than the consistency rule.
Naturally enough the legal mind revolts at a rule of pleading which requires a defendant to choose which of two honest defenses he will interpose, though both cannot be true, and neither is within his know
Again, the affirmative of the issue tendered, that is, death by accident, was upon the plaintiff. In Huestis v. Aetna Life Ins. Co. 131 Minn. 461, 155 N. W. 643, where a similar accident policy was involved, and where the pleadings were similar, it was said that the plaintiff must prove the accident and that it was not incumbent upon the defendant to prove suicide. This is the result of the following authorities, some of which the court cited: Carnes v. Iowa State Traveling Men’s Assn. 106 Iowa, 281, 76 N. W. 683, 68 Am. St. 306; Whitlatch v. Fidelity & Casualty Co. 149 N. Y. 45, 43 N. E. 405; Fidelity & Casualty Co. v. Weise, 182 Ill. 496, 55 N. E. 540; Laessig v. Travelers’ Protective Assn. 169 Mo. 272, 69 S. W. 469; Merrett v. Preferred Masonic Mut. Acc. Assn. 98 Mich. 338, 57 N. W. 169. “To entitle the plaintiff to recover at all, he must prove by a preponderance of the evidence that his was an accidental injury, because the policy only insured' him against such injuries. It is true that when an injury is shown the presumption arises that it was not self-inflicted, and to defeat a recovery the defendant must negative this presumption; but, in eases where the very foundation of the action is accidental injury, the presumption which the law raises is only an aid to the other evidence on the subject, and does not operate to shift the burden of proof on the entire issue to the defendant. * * * Much of the seeming conflict in the adjudicated cases on the question of the burden of proof, where a presumption arises in favor of either party, has grown out of the failure to clearly define the weight to be given to the presumption. It is quite commonly said that the burden is upon the defendant to overcome that presumption, but it is still true that after all the evidence is before the jury the burden rests where it did in
It was not necessary for, the defendant to allege suicide or that the death of the insured was caused by the beneficiary. Either could be proved under a general denial. Neither was an affirmative defense such as is a claim of misrepresentation or breach of warranty or suicide under a policy excepting it from the risk. The issue was upon the question whether Mr. McAlpine’s death was caused by accidental means. The affirmative of this issue was upon the plaintiff. Any evidence negativing accidental means as the cause was admissible. It was not necessary, to defeat recovery, that the jurors unite in a belief of suicide, or of death caused by the beneficiary. To justify a recovery it was necessary that the jurors unite in a belief that accidental means caused the death. There was the issue.
The court correctly ruled in denying the plaintiff’s motion to require the defendant to elect between suicide and death caused by the beneficiary.
The court did not err in submitting to the jury whether theliehefici- ' ary was concerned with the death of the insured. The evidence was slight but not negligible.
We have examined all the contentions of the plaintiff. The trial was without error. It was conducted with entire fairness to the plaintiff. A new trial should not have been granted.
Order reversed.