46 Ind. App. 40 | Ind. Ct. App. | 1910
Suit to recover on a policy of life insurance. Appellant filed an answer in one paragraph, admitting the facts set up in a single paragraph of complaint, but averring that the policy contained a provision as follows:
‘ ‘ Suicide. If within one year from the date hereof the insured shall die of suicide, whether sane or insane, or in consequence of his (or her) own criminal act, the liability of the company shall not eseeed the amount of the premiums paid on said policy. ’ ’
It was also averred that the assured died by suicide within one year from the date of the policy, and that appellant’s liability on said policy is the amount of premiums paid by said assured, to wit, $69.38, which sum said company tendered before suit, was brought, and now brings it into court for the benefit of plaintiff administrator. A reply in denial closed the issue, which was submitted to a jury. The verdict and judgment were for appellee. The questions upon which
It is contended that the presumption referred to is not evidence, and that the instruction was therefore erroneous. The authorities upon this point are conflicting. Assuming that “the exact scope and operation of these prima facie assumptions are to cast upon the party against whom they operate, the duty of going forward, in argument or evidence, on the particular point to which they relate” (Thayer, Preliminary Treatise on Evidence 314, 336, 337, 339), as appellant asserts the law to be, we are not of the opinion that the inaccurate statement is such as to justify a reversal.
The presumption was a rebuttable one. That fact might possibly have been deduced from an analysis of the last clause of the instruction heretofore set out; but the party who seasonably requests a clear-cut statement of an applicable legal proposition of so vital a character as this one, is entitled to have it given, and the last clause of the requested instruction also correctly stated the law. The refusal to give this instruction was error.
Judgment reversed and cause remanded, with instructions to sustain the motion for new trial.