59 Ind. App. 1 | Ind. Ct. App. | 1915
This action is based on a benefit certificate, issued under date of November 27, 1899, by appellant to G-. W. Young, as a beneficiary member of a local camp in Illinois. The certificate names appellee as beneficiary. Young died in Illinois on September 7, 1910. Appellant is.a fraternal beneficiary society, organized under the laws of the state of Illinois. The contract of insurance consists of the written application, the -certificate and the by-laws of the association. The complaint is not challenged. The answer is in three paragraphs, each based on a specified' provision of the contract. Such provisions aré contained in the certificate and in the by-laws, and are properly pleaded. The provisions of the certificate, so far as material, are as follows:
“If the member holding this certificate shall * * * become intemperate in the use of alcoholic drinks * # * or ,¿eath shall occur in consequence * * * of any violation or attempted violation of the laws of any state or territory of the United States, then this certificate shall be null and void, and of no effect, and all moneys which have been paid,- and all rights and benefits which may have accrued on account of this certificate shall be absolutely forfeited, and this certificate shall be null and void. ’ ’
The material provisions of the by-law involved are as follows:
“If any member of this society * * * shall become intemperate in the use of intoxicating liquors*3 * * * or if his death shall result directly or indirecuy from his use of intoxicating liquors * * * then the certificate held by said member shall by such acts become and be absolutely null and void, and all payments made thereon shall be thereby forfeited. ’ ’
The first paragraph of answer alleges in substance that Young, prior to his death became and was intemperate in the use of intoxicating liquors. This allegation is contained also in the second paragraph, and in addition, there is an averment to the effect that Young’s death resulted from the use of intoxicating liquors, in that, on September 7,1910, while in an intoxicated condition, caused by the intemperate use of intoxicating liquors, he was killed by one Cardinal, while defending himself from an unlawful assault committed upon him, by Young. The third paragraph contains an allegation to the effect that the death of Young occurred in consequence of the violation by him of the laws of the state of Illinois, in that at a named place in that state on September 7, 1910, he committed an unlawful assault on Cardinal with a deadly weapon, with the intent to murder him, and that Cardinal thereupon killed Young while in defense of his person against such assault. This paragraph properly pleads the statutes of Illinois defining the respective crimes of assault, assault and battery, assault with intent to commit murder, and assault with a deadly weapon. Appellant filed also-an answer in general denial. Appellee, without testing the sufficiency of the special paragraphs of answer, filed thereto a reply in general denial.
At the trial before a jury, some evidence was heard, with out objection, in support of the allegation of the first paragraph of answer — that Young subsequent to the issuing of the certificate became addicted to the excessive use of alcoholics. All offered evidence, however, which, if admitted, would have tended to establish the distinctive features of the second and third paragraphs of answer, as herein outlined, was excluded. The court directed the trial on the theory, as appears from the record that neither para
The contract here, in its effect, does not differ materially from those specifying that nothing is to be paid if death results from certain causes or from.certain causes within a designated period. In such cases, the courts regard the insurance as of a limited nature, and that death from the excepted causes or from such causes within the period specified, is not included within the contract of insurance. In such cases, the courts hold that the risk having attached, the contract has been and is valid as to death from all other causes, and beyond such period, and that the premiums have been paid in consideration of such insurance, and that consequently they have been earned. It follows that in such cases their return or tender is not a prerequisite to a defense of a suit on the policy. Redmen, etc., Assn. v. Rippey (1914), 181 Ind. 454, 103 N. E. 345, 104 N. E. 641, 50 L. R. A. (N. S.) 1006, note. See, also, as bearing on the question, the following: Knights, etc., Ins. Order v. Shoaf (1906), 166 Ind. 367, 77 N. E. 738; Modern Woodmen, etc. v. Craiger (1910), 175 Ind. 30, 92 N. E. 113, 93 N. E. 209; Hodson v. Great Camp, etc. (1911), 47 Ind. App. 113, 93 N. E. 861; 25 Cyc. 874, 875; 2 Bacon, Ben. Soc. and Life Ins. (3d ed.) §§320, 339; Starr v. Aetna Life Ins. Co. (1905), 4 L. R. A. (N. S.) 636, note; Bloom v. Franklin Life Ins. Co. (1884), 97 Ind. 478, 49 Am. Rep. 469; Continental Life Ins. Co. v. Houser (1887), 111 Ind. 266, 12 N. E. 479; Continental Life Ins. Co. v. Houser (1883), 89 Ind. 258; Northwestern, etc., Ins. Co. v. Hazelett (1886), 105 Ind. 212, 4
In Dickerson v. Northwestern Mut. Life Ins. Co. (1902), 200 Ill. 270, 277, 65 N. E. 694, the policy provided that, if within two shears from its date, the insured should die by his own hand, the policy should be null and void and all payments forfeited. The insured committed suicide before the expiration of the insurance purchased by one quarterly payment. It was there held that the insurer was not bound, before relying on the defense of suicide, to declare the policy void and tender back the premiums. The court said: “Counsel refers to cases where policies have been rescinded for fraud or false representations in procuring them, but such cases have no application here. Of course, where the insurance company seeks to rescind and declare the contract void ab initio, it must, as in all cases of rescission, place the party in statu quo, because in such cases it would be inconsistent to claim that the policy was never in force, and at the same time retain the premiums paid as a consideration for a risk, which had never been assumed.” Under somewhat similar circumstances, and where the insured committed suicide before the expiration of the time for which he had paid, the following language is used: “The contracts of insurance, when fairly and reasonably construed, show that death of the insured by suicide, sane or insane, was a risk not undertaken by the insurer at all. There is no merit m the contention that a return of the premiums paid by Kelly was a prerequisite to a defense by the insurance company. The company earned the premiums paid
There is some confusion in the record respecting the Christian name of Cardinal, in conflict with whom it is alleged Young lost his life. Notwithstanding this confusion, the error is presented.
The judgment is reversed with instructions to sustain the motion for a new trial, and with permission to reform the pleadings if desired.
Note. — Reported in 108 N. E. 869. As to conflict of laws in respect to nonforfeiture of life policies, see 104 Am. St. 483. As to tbe duty of insured to negative death or accident from excepted cause, see 4 L. R. A. (N. S.) 636; 50 L. R. A. (N. S.) 1006. As to return of premiums as condition of cancellation by virtue of cancellation clause, see 13 L. R. A. (N. S.) 884. See, also, under (1) 29 Cyc. 227, 66, 185; (2) 29 Cyc. 227, 185; (3) 29 Cyc. 194.