| S.D. | Jun 26, 1909
This action was brought by plaintiff and appellant to recover of the defendant and respondent upon a policy of insurance, in the sum of $5,000, issued by defendant to Milton W. Miles, and payable to his wife, the plaintiff herein. Said policy contained a provision whereby in case of suicide of insured within a period of one year from its date the liability of the defendant should be limited to the amount of premium paid thereon. After having paid premium to the amount of $72 and within one year from date of policy the said Milton W. Miles died. The defense was that the insured committed suicide, and the sole issue on the trial was this question of whether deceased came tó his death by suicide. The jury returned the following verdict: “We, the jury,' in the above-entitled actiqn, find all the issues in favor of the plaintiff, and assess her damages at the sum tof seventy-seven dollars.” Plaintiff excepted to this verdict on the ground that it was contradictory, in that it finds on the issue of suicide against the defendant, and then assesses plaintiff’s damages at only $77, when she claims she would be entitled to $5,000 and interest. The verdict being received and judgment entered thereon, and the trial
Plaintiff asked for certain instructions which were certainly proper in themselves and stated correct legal propositions applicable to the case at bar, but inasmuch as the instructions asked’ are fully covered by those given, with the exception of one clause; and which clause 'we do not think material' in vi$w of other instructions given, the plaintiff ■ could riot possibly have been-prejudiced by the court’s refusal to give the instructions in the1 words as asked for by plaintiff; ' ■
The plaintiff complains that certain instructions given by the court were contradictory, also, that they were' argumentative" in their nature, and that they tended to present the defendant’s theories while withholding those 'of plaintiff and that from such instructions the jury would gather the views of the court as to the facts. We do not feel it proper to incumber' this opinion, with a full statement of the instructions given, but to us they seem, under the issue in this -case 'and evidence that had been received thereon, to be very fair to both parties.
In addressing the jury plaintiff’s counsel departed from a discussion of the evidence in a couple of instances, defendant’s counsel objected toftiis statements, and the court ruled with defendant,, cautioning plaintiff’s counsel as to his line of argument. We do not .see anything in the statements that could have been very dangerous to the defense, yet they certainly were subject to objection, and plaintiff cannot complain because the trial court disapproved of same.
The plaintiff strenuously contends that the evidence received was insufficient to prove thát the deceased committed suicide. The evidence is quite voluminous, and no useful purpose could be sub-served by statement of same. To'us it seems to admit only of the conclusion that deceased killed himself, and we cannot conceive
The most important question lin this case arises- from the wording of the verdict, but, when we consider the only issue in this case, together with the whole record, we believe the trial court was justified in receiving the verdict and entering judgment thereon. The trial court gave the following as a part of its instructions : “Gentlemen of the jury, take this case fairly and honestly, and very carefully consider the evidence submitted tO' you, and determine the question: Did Mr. Miles intentionally take his own life? If you find that he did, your verdict shoüld be for the defendant. If you find that he did not, then your verdict should be for the plaintiff. If you find for the plaintiff, she will be entitled to recover the sum of $5,000, with interest at 7 per cent, from the -. i[Counsel agree as to the amount of interest.] If you find in favor of the defendant — that is, that Mr. Miles came to his death by suicide — then the plaintiff will be entitled to recover only the amount of the first premium paid by the assured, with added interest thereon. Verdicts will be sent out with you to cover the conditions of either state of facts, as you may find them.”
Take this instruction as a whole, and it directs the jurors that if they find the deceased committed suicide their verdict should be for the plaintiff for the $72 and interest; and, in case thev did not so find, their verdict should be for the plaintiff for $5,000 and interest. We think we can fairly presume, in view of the wofdá of’the instructions, that two verdicts fully written puff were sent out with' the jury, and that in selecting the one providing-damages in the sum of $77 they paid no attention to the recital “all the issues”; bu't’ even presuming that the jury wrote out its own verdict and put in these words, yet, under ¡the circumstances, they cannot be controlling. Can there be the slightest question whatever as to the intent of the jury? Is it possible for one to doubt that the jury found the issue of suicide in favor of the defense? Suppose there had been a general verdict in favor of the plaintiff for $5,000 arid a special finding that deceased comrnitted suicide, the special finding would'control and judgment enter accordingly. The verdict as rendered was, to our mind, as certain
It is therefore ordered /that the judgment of the trial court and order denying a new trial be, and the same are, affirmed.