118 Kan. 523 | Kan. | 1925
Lead Opinion
The opinion of the court was delivered by
The plaintiff appeals from a judgment in favor of the defendant on an accident insurance policy issued in her favor on the life of her husband, A. H. Schumacher, who died from a gunshot wound.
The policy contained the following provision:
“This certificate shall not extend to nor cover nor is any indemnity promised for injuries sustained while riding a motor cycle, nor injuries received at a time when the assured is under the influence of intoxicating liquors or narcotics, nor injuries received from wars or riots, nor bodily injuries resulting from the discharge of a firearm, unless the claimant shall establish the accidental cause of the discharge by the testimony of a person, other than the injured or the claimant, who actually saw the accidental cause in operation.”
No one saw the accident and no other person was present when Schumacher was shot, except a two-year-old child. The defendant pleaded the quoted provision of the policy and alleged that .the plaintiff had not submitted adequate proofs of accidental death and was not entitled to recover. The cause was tried to a jury, which returned a verdict in favor of the plaintiff and answered special questions, which were supported by evidence and which showed that the deceased had met his death by the accidental discharge of a shotgun.
The. case turns on the validity of the above-quoted provision of
This court in Hannon v. United Workmen, 99 Kan. 734, said:
“A by-law of a fraternal beneficiary association providing that ‘mysterious disappearance or unexplained absence of a member shall never be considered proof or evidence of death of such member’ does not prevent the application of the usual rule as to unexplained absence under certain circumstances being sufficient to raise a presumption of death, in the trial of an action brought upon a certificate issued before its adoption.” (Syl. If 4.)
It should be noted that the by-law there stated to be invalid was passed by the society after the insured had become a member, and the statement appears to have been based at least partly upon that fact.
The provision in question is a limitation on the liability of the insurer, not a stipulation by which certain facts must be proved. The company had the right to make a contract limiting its liability. The insured accepted the policy with that limitation in it. The insurer and the insured were capable of contracting. They made a contract. This court will not change that contract by holding one of its provisions invalid, thereby creating a liability against the insurer when it had stipulated at the time the contract was made that it would not be liable under the conditions named.
The judgment is affirmed.
Concurrence Opinion
(concurring specially): I concur upon the ground that the clause in question, so far as is vital here, relates essentially