120 N.W. 760 | N.D. | 1909
This is an action to recover upon a policy of fraternal life insurance issued to -the plaintiff’s husband for her benefit on the 25th day of July, 1899, for the sum of $2,000. The complaint alleges the payment of the premiums and the issuance of the policy or certificate of insurance and the subsequent death of the insured on the 22nd day of July, 1902, and that proof of death was furnished to the defendant as required by the certificate of insurance and rules of the company, and that payment of the amount has been refused by the defendant, although duly demanded. The answer alleges as defenses (1) that the insured made false answers to certain questions propounded- to him in his application for insurance, and that such statements were made warranties by the terms of the application and were false, and rendered the policy null and void; (2) that the insured came to his death through suicide, which under the terms of the policy rendered it null and void. The action came to trial on the 16th day of January, 1907, before a jury which brought in a verdict in favor of the plaintiff for the full amount. A motion for a new trial was duly made upon statutory grounds and was denied, and judgment rendered on the verdict. On the 23d day of September, 1907, the defendant appealed from the judgment and from the order denying the defendant’s motion for a new trial. There are 48 assignments of error, but the points especially urged in the brief and on oral arguments are: (1) That the
On the question of the cause of death, it may be said that the application and the policy provided that if the insured came to his death through suicide, whether sane or insane, the policy would be null and void. It is claimed by the appellant that the evidence shows that the cause of death was suicide. The jury was fully instructed on the question, and was told that, if the evidence showed that death was caused by suicide, the verdict must be for the defendant. Upon a careful review of the evidence, we are satisfied that the verdict is not against the weight of the evidence; whereas, there are circumstances indicating suicide. There are also circumstances showing that death may have been caused by an assault with a hammer, on which there was blood when it was found close to the body of the insured when his death was discovered. It is clear to us that the verdict should not be disturbed under such circumstances, as the question is one for the jury. When found dead, it appeared that he might have been struck with a hammer from the condition of his head, and a razor was found near his body which did not belong to him, and it may have been that his throat had been cut by some one else with this razor. There was some evidence also that the insured had had some trouble with one of his men who had threatened to get even with him. In this state of the record we would not be justified in saying that the verdict is not sustained by the evidence.
Great stress is laid upon the fact that in the proof of death sent to the company it was stated on information and belief that death was caused by suicide. The claim is made by the appellant that the fact so stated as to the cause of death cannot be contradicted by the beneficiary, in the absence of a pleading showing that the proof stated the cause of death to be suicide through a mistake. This contention cannot be sustained. There are cases holding that the bene
The principal and most difficult question in this case is whether section 5934, Rev. Codes 1905, -can be applied in the decision of this case in view of sudi answers. That section reads as follows: “No oral or written misrepresentation made in the negotiation of a contract or policy of insurance by the insured, or in his behalf, shall be deemed material or defeat or avoid the policy or prevent its attaching, unless such misrepresentation is made with actual intent to deceive, or unless the matter misrepresented increased the risk of los-s.” This section was enacted in, this state in the year 1895, and was not therefore in force when the case of Johnson v. Insurance Co., 1 N. D. 167, 45 N. W. 799, was decided. In Satterlee v. M. B. A. 15 N. D. 92, 106 N. W. 561, the section was referred, but a consideration of it was held unnecessary. It will be noticed that this section applies only to misrepresentations if its language cannot be made to include warranties by a liberal construction of its provisions. The contents of the certificate of insurance and of the application were couched in such language that there is no room for contention that the answers to certain questions were not made warranties, as will be shown by the following extracts: In the certificate of insurance it is -stated “this benefit certificate is issued and accepted upon the following express warranties, conditions, and agreements: First, that the application of the above-named member, and medical examination for membership in this order, which is hereby referred to and made a part of this contract for benefits is true in all respects, and that the literal truth of such application, and each part thereof, shall be -held to bé a strict warranty, and to form the only .basis of the liability of this order to such member, -and to beneficiary, or to beneficiaries, the same as fully set forth in this certificate.” The policy was indorsed by the following
A section of the insurance law of the state of Massachusetts which is identical with section 5934 was construed by the Supreme Court of that state in the year 1895, and that count used the following language in its decision: “It is easy to see how an insurer, by multiplying immaterial statements to be made by the insured, and giving to them by the wording of the policy the technical character of warranties, can, in the absence of any statute provision upon the subject, place the assured in a position in which it will be difficult, if not impossible, for him, although he has acted in good faith, to recover upon his contract because of some inaccurate statement on his part. If he is held to have warranted the truth of a statement, its exact and literal truth is. a necessary condition of his right to recover, however immaterial the statement may be, and however honest may have been bis conduct. In .the opinion of the majority of the court it was the intention of the Legislature by St. 1878, e. 157, to change this rule to some extent, and to enact in place of it one which should hold a contract valid, unless the misstatement, if made in the negotiation of the contract, was made with actual intent to deceive, or unless the misstatement was of a character which actually increased the risk of loss, and this with reference to statements which may be said by the parties to be warranties, as well as those which were 'only representations. Such was already the law as to statements not technical warranties. As to mere representa
The appellants also insist that the court should have given the jury an instruction which was requested to the effect that if they found that the plaintiff had in her possession a certain note which was found upon the person of the decedent, and failed to produce the same, it would be presumed that the contents of such note would be prejudicial to the claim of the plaintiff. It is sufficient answer to this contention to say that the evidence showed without any contradiction that the note referred to was not in the possession of the plaintiff or her attorney at the trial. The evidence also shows that the note had been lost without fault of the plaintiff or her attorney. The requested instruction, therefore, had no applicability to the evidence.
It is also contended by the defendant that the court erred in sustaining objections to the questions propounded to the plaintiff when called for cross-examination under the statute. All these questions referred to a lawsuit which the plaintiff’s husband brought against the Northern Pacific Railway Company to recover for an injury which he had received through the alleged carelessness of said company in the year 1891. There is nothing in the record showing in ■the remotest degree that the injury so received and for which the suit referred to was brought increased the risk under the policy taken out by the plaintiff’s husband in the year 1899. Such answers were therefore immaterial in the absence of an offer to prove or a showing that such injuries affected the risk under the policy in suit.
It is also urged by the appellant that the trial court erred in refusing an extension of time for filing exceptions to the charge.' These matters are so completely within the discretion of the trial court that this court will not interfere with its action unless there is a manifest abuse of discretion. In this case, after a review and consideration of what transpired in regard to the filing of exceptions, we are convinced beyond a doubt that there was no abuse of discretion.
It is contended by the appellant that judgment was entered for a sum in excess of the amount actually payable under the policy, conceding liability thereunder. At the close of the trial the defendant
Finding no reversible error in the record, the judgment is aT firmed.