No. 8376 | Kan. | May 9, 1896
The opinion of the court was delivered by
: I. The plaintiff in error contends that under the pleadings the burden was upon the plaintiff below to prove by a preponderance of the evidence that the death of the assured from taking the opium or other poisonous substance was unintentional and accidental. There is no room to doubt that the taking of the opium was the act of the assured ; but the courts are in general accord in holding that the words of a condition avoiding the policy if the assured shall die “by his own hand” or “by his own act” are equivalent to a proviso against suicide or intentional self-destruction. ( Bliss, Life Ins. §§228, 229; 2 Biddle, Ins. §831; Life Ins. Co. v. Terry, 15 Wall. 580" court="SCOTUS" date_filed="1873-04-28" href="https://app.midpage.ai/document/life-insurance-v-terry-88642?utm_source=webapp" opinion_id="88642">15 Wall. 580, 591; Penfold v. Universal Life Ins. Co., 85 N.Y. 317" court="NY" date_filed="1881-05-31" href="https://app.midpage.ai/document/penfold-v--universal-life-insurance-co-3599703?utm_source=webapp" opinion_id="3599703">85 N. Y. 317, 321, 322 ; N. W. Mutual Life Ins. Co. v. Hazelett, 105 Ind. 212" court="Ind." date_filed="1886-01-27" href="https://app.midpage.ai/document/northwestern-mutual-life-insurance-v-hazelett-7048210?utm_source=webapp" opinion_id="7048210">105 Ind. 212; Eq. Life Assurance Soc. v. Paterson, 41 Ga. 338" court="Ga." date_filed="1870-06-15" href="https://app.midpage.ai/document/equitable-life-assurance-society-v-paterson-5555446?utm_source=webapp" opinion_id="5555446">41 Ga. 338, 367.) Unless the answer be construed as intending to allege, suicide as a defense,
II. S. Fred Harker, then being a school-teacher, 20 years of age, was adjudged insane in the probate court of Perry county, Illinois, on November 5, 1885, the verdict reciting that the cause of insanity was excessive study, and that Harker manifested suicidal tendencies. He was committed to the asylum for the insane at Anna, 111., on the next day, and on December 34 the superintendent wrote to the authorities of Perry county, notifying them that Harker had recovered, and asking them to remove him within 30 days, and he was finally discharged from the asylum December 24, 1885. The testimony shows that, while at the institution, Harker was afflicted with acute melancholia, a mild form of insanity unaccompanied by delusion. Afterward, he was a student at the university at Ottawa, Kan., further preparing himself as a teacher and for the Baptist ministry. He then became the principal of the high school at Columbus, and during the vacation of 1890 he visited relatives at Sioux City, Iowa, and El Dorado, Kan., returning to Columbus on July 3, with a view to an engagement for preaching to the Baptist congregation for three months, having so served them before occasionally in
III. A mere misstatement, unless wilful and fraudulent, will not avoid the policy, in the absence of a warranty of the truth of the statement. (Washington Life Ins. Co. v. Haney, 10 Kan. 525" court="Kan." date_filed="1873-01-15" href="https://app.midpage.ai/document/washington-life-insurance-v-haney-7883245?utm_source=webapp" opinion_id="7883245">10 Kan. 525 ; N. W. Mutual Life Ins. Co. v. Woods, 54 id. 663.) The trial court, however, treated the answer to question 9 as a warranty, as fully shown by instructions 10, 11, 12, and 13. A-single expression occurs in instruction 12 which might indicate that the court had in mind the law as to a misstatement in the absence of Warranty; but, as it is immediately followed by the direction that, if the jury believed from all the evidence that the answer to said question was in fact untrue, they should find for the
Some questions are raised upon the introduction of evidence, but they are without substantial merit, and the judgment must be affirmed.