Suppiger v. Covenant Mutual Benefit Asso.

Wilkin, P. J. We are aware of no rule of practice which would justify the action of the trial court in talcing the case from the j ury, under the issues and proofs made. For the purpose of this opinion, however, the case may be treated as though the instruction had been to find for the defendant, which it was in effect, as to the principal sum sought to be recovered. It appears from the rulings of the court below that it held the introduction of the proof of loss or death was essential to appellant’s right to recover, and based the foregoing instruction on the want of that evidence alone. An effort is now made to sustain the action of that court in so intructing the jury, upon the further ground that the action can not be maintained in a court of law, and that the contract or certificate- of membership was improperly admitted in evidence, unaccompanied by the application. These last propositions may be briefly disposed of first. On the allegations of her amended decoration, appellant was entitled to recover the full amount of the certificate, unless by some defense that amount was reduced. Elkhart Hut. Aid, etc., Ass’n v. Houghton, 2 N. E. Reports, 763. The stipulation filed in this case amounts to an admission that if appellee had made assessments according to the terms of the contract, the full amount of §5,000 would have been realized. There is no pretense that the insured was in default in any duty he was required to perform by the contract. Ho reason is perceived why an action at law can not be maintained in such a case, against the insurer, for a breach of its obligation and agreement in refusing to comply with the terms of the policy or certificate. While a court of chancery might furnish a more adequate remedy, as is said in Benefit Association v. Sears, 114 Ill. 113, it does not follow that a court of law has no jurisdiction. On the contrary, the above cited case recognizes a common law jurisdiction in like cases. Appellant was under no obligation to introduce the application upon which the certificate issued. It was a paper properly in possession of appellee, and if it desired it in evidence, it was its duty to produce and introduce it. Mut. Benefit Life Ins. Co. v. Robertson, 59 Ill. 136. The ground upon which the court based its action is equally untenable. The letter of December 24, 1883, by the secretary of appellee, as effectually waives all proof of loss as though it had been written for that express jmrpose. There could be but one reason for requiring appellant to introduce the proof of loss furnished appellee, that is, to show that she had complied on her part with the terms of the certificate. It would have been competent for no other purpose. Knickerbocker Ins. Co. v. Gould et ah, 80 Ill. R. 393. In the face of the letter above referred to, appellee could not insist that satisfactory proof of loss had not been furnished, and it was therefore wholly unnecessary for appellant to offer other evidence that she had complied with the requirements of the certificate in that regard. Peoria Marine and Fire Ins. Co. v. Whitchill, 25 Ill. 466 ; Hartford Fire Ins. Co. v. Walsh, 54 Ill. 164; Phœnix Ins. Co. v. Tucker, 92 Ill. 64. The evidence introduced by appellant under the rules of law applicable to the case not only tended to support her cause of action, hut made out a clear prima facie case, entitling her to a verdict and judgment for $5,000. The court therefore of red in taking the case from the jury, and for this error the case must be reversed and remanded. An important question arises on the decision of the circuit judge on the demurrer to the third replication to the third plea, and as the case must be re-tried, that question can not be properly ignored here. The plea sets out the condition in the certificate exempting appellee from liability, if the holder should die by reason of any act of self-destruction, and then avers that Robert Suppiger violated said condition by compassing his own death, and did then and there die on, to wit, Aug. 22, 1883, by shooting himself, such shooting being then and the e an act of self-destruction. The replication seeks to avoid this plea in this language: “ Because she says that at the time when the alleged act of self-destruction was committed, the said Bobert Suppiger was of unsound mind, wholly and entirely unconscious of the physical and moral consequence of the act, and was the subject of an insane impulse which he had no power to resist.” The condition in the certificate set up by the plea is to he treated as though the word suicide had been used instead of self-destruction, the terms being equivalent when used in the same connection in insurance policies. It is uniformly held that notwithstanding a condition against liability in case of suicide in contracts of life insurance, yet if, at the time of the suicidal act, the insured was so insane as to be unconscious of the act, or if he was driven to its commission by some insane impulse which he had not the power to resist, the condition does not attach, and the insurer is still liable. The irreconcilable conflict of authorities is on the question as to whether the unconsciousness must extend to the moral right or wrong of the act, thus bringing the subject within the legal definition of suicide, or whether any voluntary intentional self-killing is sufficient to discharge the insurer. The Supreme Court of the United States is committed to the former doctrine and holds that there must be an act of criminal self-destruction. Life Ins. Co. v. Terry, 15 Wallace, 58; Manhattan Life Ins. Co. v. Broughton, 3 Sup. Ct. Rept. 99 ; Bigelow v. The Berkshire Life Ins. Co., 93 U. S. (3 Otto) 284. The courts of last resort in many of the States adopt the same rule, while in others and in England it is held that a voluntary self-destruction is within the terms of the condition, although at the time of the act there was not sufficient mental understanding to appreciate its moral turpitude. Bomdarle v. Hunter, 5 M. & Gr. 693; Clift v. Schwate, 3 M., Gr. & Scott, 437. The cares cited and the conflict here mentioned, will be found to furnish a reason and some clew to the object of insurance companies in adding to such conditions the expressions, “ sane or insane,” “ voluntary or involuntary,” “ voluntary or otherwise,” all of which are held to be equivalent; and the weight of authority seems to be that they are added for the purpose of avoiding the stricter construction above referred to, and not to exempt the company from liability in all cases of self-killing. Hence, so far as the courts have been called upon to give construction to such policies, it has been held that the additional words relieve the insurer in all cases of voluntary intentional self-destruction, but not in cases where the act is committed in a fit of frenzied madness, and the like, when there is no ability to form an intention. In the case of Bigelow v. The Berkshire Ins. Co., supra, Justice Davis says: “ Nothing can be clearer than that the words sane or insane were introduced for the purpose of excepting from the operation of the policy any intentional self-destruction, whether the insured was of sound mind or in a state of insanity.” To the same effect are the cases of Adkins v. L. Ins. Co., 70 Mo. 27, and Pierce v. Travelers L. Ins. Co., 34 Wis. 389. In the former it is said, “ The words sane or insane conclusively show that it was the purpose of the defendant to avoid the risk of intentional self-destruction by an insane man, and we are of the opinion that the addition of these words is adequate to the accomplishment of the purpose.” The test, then, would seem to be, was the act intentional. The plea in this case is to have the same effect as though it had in express terms charged that ¡Robert Suppiger intentionally shot himself. The replication doesnot deny that allegation; as was said in Bigelow v. Berkshire L. Ins. Co., the replication concedes, in effect, all that is alleged in the plea. The language used in the replication in that case which was held bad, was that the deceased “ was of unsound mind and wholly unconscious of the act.” This language was treated by Justice Davis, and similar language by Judge Nelson in Breasted v. The Farmers’ Loan and Trust Co., 4 Hill, 73, as an averment only that the assured was insane when he killed himself ; Justice Davis in his opinion saying, “ They can be treated in no other way ; if the self-destruction was not intended, the replication would have said so.” While the language there used is more general than in this replication, the effect is the same and must have a similar construction. We think the demurrer was properly sustained to it, because it does not deny the material allegation of the plea, and only attempts to do so by way of argument. For the reasons stated the judgment will be reversed and the cause remanded. Reversed and remanded.