Scott v. Empire State Degree of Honor, 204 A.D. 530

Scott v. Empire State Degree of Honor

204 A.D. 530 | N.Y. App. Div. | 1923

Hubbs, P. J.:

The defendant issued its benefit certificate upon the life of Fred C. Wright. The plaintiff is the beneficiary named in the certificate. The defendant is resisting the collection of $1,000, the amount of insurance named in the certificate, upon the ground that the insured lost his life while committing an unlawful act and upon the ground that the assured committed suicide.

The insured, at the time of his death, was twenty-four years of age. When last seen alive he was on the river dike in the city of Corning. The witness Twist met him there and had a short conversation with him. There was nothing unusual about the conversation, or the way the deceased acted. The witness walked on a short distance when he heard a shot, turned, and saw the deceased take a few steps and fall. He returned and found that the deceased had been shot through the chest. He died immediately. Upon the ground near his body a revolver was found. No evidence was offered to show that it was loaded, that it had been fired, that it was in a condition so that it could be fired, or that it was owned by the deceased. The only evidence in regard to the revolver was that it was there on the ground.

The certificate provides that it shall be void “ if the insured shall die in consequence, directly or indirectly, of participating in any riotous or unlawful act,” and also “ This contract shall be void if the insured shall die: * * * in an attempt to violate any law of the United States, or of any State or county in which he may be.” It is urged that these provisions of the certificate of insurance required a nonsuit because the insured, at the time of his death, was violating sections 1897 and 1898 of the Penal Law by having *532concealed upon Ms person a firearm without a written license therefor. As heretofore stated, there is no evidence in the record that the insured had the revolver concealed on Ms person or that the revolver found on the ground belonged to him.

Not every violation of law makes an insurance policy void. It is only where there is a causative connection between the violation of the statute and the injury sustained that a recovery is prevented. (Messersmith v. American Fidelity Co., 187 App. Div. 35; affd., 232 N. Y. 161.)

•The insurance certificate also provided: “It is hereby agreed that, if the insured hereunder shall commit suicide, whether sane or insane, during the first tMee years of membership, tMs contract shall be null, void and of no effect, and no claim whatever shall exist hereunder, and that any death certificate filed in pursuance of law, or any finding, determination or certificate made by a coroner or other public officer, to the effect that the death of the insured was self-inflicted or suicide, shall be presumptive evidence of such fact.”

The insurance certificate in question had not been in force for three years at the time of the death of the insured. Article 20 of the Public Health Law (as added by Laws of 1913, chap. 619) provides for the filing of death certificates and prescribes the practice connected therewith. (See Public Health Law, §§ 377, 391, as added by Laws of 1913, chap. 619. See, also, Laws of 1921, chap. 398, amdg. said § 391; Civ. Prac. Act, 367.) The coroner filed a certificate wMch gave the cause of death as “ Shock & Hemorrhage following Gun Shot wound of left chest ” and (secondary) “ Suicide.” The receipt in evidence of a certified copy of the coroner’s certificate of death was objected to by the plaintiff upon the ground that the form of the certificate did not give it the effect of “ presumptive evidence ” of the fact that the death of the insured was “ self-inflicted or suicide.” The certificate was properly received in evidence and was presumptive evidence of the fact that the death of the insured was “ self-inflicted or suicide.” In form it was sufficient to comply with the statute. The defendant did not rest upon the certificate but called the coroner who testified to all the facts witMn his knowledge. At the close of the evidence there was a clear question of fact as to whether or not the insured committed suicide.

Both the plaintiff and the defendant moved for a directed verdict, and the learned trial court directed a verdict for the plaintiff. Before the verdict had been received or entered the counsel for ohe defendant asked permission to go to the jury upon the two defenses referred to herein. The plaintiff’s counsel objected, the *533objection was sustained, and the defendant’s counsel duly excepted. The denial of the defendant’s request was clearly erroneous and necessitates a reversal of the judgment unless it can be held that there was no question of fact to be determined. As the evidence stood at the close of the case it was a question of fact whether or not the insured committed suicide and that question should have beer submitted to the jury. (Brown Paint Company v. Reinhardt, 210 N. Y. 162.)

The judgment should be reversed upon the law and a new trial granted, with costs to the appellant to abide the event.

All concur.

Judgment reversed upon the law and a new trial granted, with costs to the appellant to abide the event.