National Union v. Thomas , 10 App. D.C. 277 ( 1897 )

Mr. Justice Shepard

delivered the opinion of the Court:

1. The condition in the by-laws of the association, expressly accepted by Ernest F. Thomas in his application, that no benefit should be paid upon his death, in the event that he should commit suicide, whether sane or insane, within two years from his admission to membership, is a valid one, and if proved would bar plaintiff’s right of recovery. Bigelow v. Berkshire Ins. Co., 93 U. S. 284. But the burden of proving that his death was suicidal was upon the defendant. Under the pleadings in the case and the contract as it appears in the record, the plaintiff made a prima facie case upon proof of the membership and death of the deceased and the refusal of the defendant to pay the stipulated benefit. Casey v. National Union, 3 App. D. C. 510, 516; Home Benefit Associations. Sargent, 142 U. S. 691, 693, 699.

2. The contract was to pay the beneficiary the stipulated sum “ upon sufficient proof of the death of the said friend and upon the surrender of this certificate, provided always that the said friend shall be in good standing in this order at the time of his death.” No form of proof of death was required of the beneficiary, and she was under the implied obligation merely to give notice that the death occurred, and, possibly, also, to render a particular statement of the time, place and circumstances of the death if demanded of her. By-law 59, quoted above, made it the duty of the local council to inquire into the facts of death, and report them to the secretary of the Senate of the order. The beneficiary in the certificate had nothing whatever to do with this investigation and report and was under no obligation to see that it was made. Millard v. Legion of Honor, 81 Cal. 340, 348; Lorschner v. Knights of Honor, 72 Mich. 316, 329. Certainly no such obligation or duty is expressly imposed, and it cannot be implied under the familiar rule that the conditions of a policy of insurance are' to be construed most strongly against the insurer, and in favor always of the insured. U. S. Mut. Assn. v. Hodgkin, 4 App. D. C. 516, 523.

The conditions in respect of the proceedings to establish proof of death and the liability of the insurer are essentially different from those involved in the cases cited on behalf of the appellant, namely, Campbell v. American Pop. Life Ins. Co., 1 MacArthur, 246, and Rood v. Mutual Ben. Assn., 31 Fed. Rep. 62. In the first of those cases, it seems that the insured had been a sufferer from the effects of intemperance. At any rate, there was an express stipulation that if, upon inquiry, the surgeon of the company should decide that the insured died from the effect of intemperance, or from a disease aggravated by intemperance, there should be no liability. In the absence of proof of fraud or misconduct on the part of the surgeon his conclusion was held to be binding. In the second case, it was expressly stipulated that all claims should be referred to the board of directors, whose decisions should be final. This was held'to be a valid agreement to refer the matter of liability to arbitration, and hence the conclusion of the said board could only be impeached upon the same grounds as any other award.

3. But had the policy, or certificate, contained a stipulation defining the form of proofs of loss and making the presentation of the same, by the beneficiary, a condition precedent to her right to recover, there would be no error in the ruling of the court. Having made its own examination into the cause of the death of the member, the defendant, without calling for any statement from the beneficiary, distinctly and unequivocally repudiated its liability under the contract. “ The weight of authority is in favor of the rule, that a distinct denial of liability and refusal to pay, on the ground that there is no contract, or that there is no liability, is a waiver of the condition requiring proof of the loss or death. It is equivalent to a declaration that they will not pay, though the proof be furnished.” Knickerbocker Life Ins. Co. v. Pendleton, 112 U. S. 696, 709.

4. The whole of the evidence has been recited in the preliminary statement, and facts and circumstances appearing therein without contradiction, tend strongly to show that the deceased intentionally killed himself. Yet, after much consideration, and not without some difficulty, we are constrained to hold that the court did not err in refusing to direct the jury to return a verdict for the defendant. Taking into consideration that the burden of proof was upon the defendant on this issue, we are unable to say that the proof was so certain and conclusive that all reasonable men must necessarily infer thei-efrom that the death was the result of design instead of accident. Insurance Co. v. Doster, 106 U. S. 30, 32; Conn. Mut. Life Ins. Co. v. Lathrop, 111 U. S. 612, 615; Railroad Co. v. Carrington, 3 App. D. C. 101, 109, and cases cited. The facts and circumstances of this case, tending to compel the inference that the deceased committed suicide, are not stronger or more persuasive than those of the two following cases, in each of which the majority of the court held that that they were properly submitted to the jury. Casey v. National Union, 3 App. D. C. 510; Home Benefit Association v. Sargent, 142 U. S. 697-700.

5. After the defendant had admitted that the deceased had paid all dues and assessments on account of membership, the court might well have excluded, as wholly unnecessary, the receipt for the last call made upon him and paid by plaintiff. But as the jury were instructed then and there, that the receipt did not constitute evidence of a waiver of the defence to the suit, no possible injury therefrom could have been sustained by the defendant.

No further question of waiver was made in the case, and it was neither necessary nor important to reinstruct the jury on the point. Hence, there was no error in refusing the special instruction of the defendant to that effect.

6. Having already held that the plaintiff was under no obligation to see that proofs of death were made under the requirements of by-law 59, and that she was not bound to offer them, when made, as a condition of recovery, we must further hold that they were not admissible as evidence against her when offered by tlie defendant.

She neither subscribed said, proofs when made, nor offered them to the defendant. Indeed, it appears from the bill of exceptions that they were never even shown or submitted to her. There is not a fact in the record that tends to afford the slightest foundation for their competency as admissions of the plaintiff.

7. The next assignment of error is founded on the exception taken to the exclusion of the coroner’s report when offered in evidence by the defendant.

We are not called upon to decide whether, in a case like this, the verdict of a coroner’s jury approved and entered of record by him in his official capacity, would be admissible as evidence of the manner and cause of death. That such a record is competent evidence has been held by the Supreme Court of Illinois. U S. Life Ins. Co. v. Vocke, 129 Ill. 557. In Evanston v. Gunn, 99 U. S. 660, 666, it was held that the official record of the weather observer at Chicago was admissible in evidence to show the condition of the weather upon the day that plaintiff received the injury, which, was the subject matter of her suit. In considering the effect of that case, however, it must be observed that the fact proved was not the issue of the case, but a mere incident thereof, and was also one of a character like, for example, the market price of articles of commerce at a time in the past, which it has been held may be proved by the private entries of disinterested persons dealing therein at the time. Cliquot’s Champagne, 3 Wall. 114, 141.

The record offered in evidence is not that of an inquest held in due course of law. No jury was summoned, and yet the verdict of a jury, regularly empaneled in accordance with law, is the essential foundation of a coroner’s finding and efficient official record. 4 Am. & Eng. Encyc. L., p. 177 et seq. It is the coroner’s duty to inquire into cases of violent or suspicious death and determine whether it is necessary to hold an inquest. In this case he evidently did not think it necessary, and his report is not that of the inquest contemplated by the law. Compiled Statutes D. C., p. 113, Chap. 14, Sections 1 and 2.

The record of the report made by the same person as health officer is subject to the same objection, and need not be separately considered.

We think that both, even if official records in a certain sense, are governed in respect of their competency and effect as evidence by a former decision of this court. Prigg v. Lansburgh, 5 App. D. C. 30, 36. Hence there was no error in their exclusion.

8. The next exception is to the refusal of the court to permit the defendant to prove by the coroner and the other surgeon who saw the body shortly after the fatal shot had taken effect, that, in their opinion, the deceased fired the same with the intention to kill himself. We think the evidence was properly excluded. The subject-matter of the proposed inquiry was the very one that the jury had been empaneled to try. The facts showing all the conditions and surroundings, as seen and testified to by these witnesses and others, were before them. They were capacitated to draw a reasonable inference therefrom without the aid of experts. The effect of admitting the opinions of experts, under such circumstances would be to influence rather than to aid the jury in forming an opinion. Van Zandt v. Mut. Ben. Life Ins. Co., 55 N. Y. 169, 179; Milwaukee, &c., R. Co. v. Kellogg, 94 U. S. 469, 474; District of Columbia v. Haller, 4 App. D. C. 405, 413.

9. There was nothing in the last assignment of error. Plaintiff introduced the witness Mary Green, and asked her if deceased said anything the evening before his death concerning his arrest and trouble with the department in 1888. She was then asked to state what he said. Defendant objected to this statement, which plaintiff’s counsel said was to the effect that the prosecution had been settled and was out of the way. They further said their object was not to prove that a settlement had been had, but to show that the mind of deceased was not disturbed by the apprehension of prosecution.

The court sustained defendant’s objection, and then excluded the evidence that had been given by the witness. To this exclusion defendant objected and took an exception. This statement of the witness was clearly offered as introductory of the proof of the excluded statement. To let it remain for the consideration of the jury would have led to a false impression and have worked the grossest injustice to the plaintiff.

Having examined every point made in the bill of exceptions and found no reversible error, we must afñrm the judgment, with costs; and it is so ordered.

Affirmed.