Metzradt v. Modern Brotherhood of America

Given, J. 3 4 I. We first inquire as to tbe defendant’s motion to strike from tbe reply tbe plea of estoppel because of tbe medical examination and report by tbe defendant’s examining physician. If section 1812 of tbe Code applies to tbis case, then clearly such examination and report operates as an estoppel, except as to fraud or deceit of tbe assured. Counsel discuss at length tbe question whether that section applies to tbis defendant, but, as we view tbe record, we need not pass upon tbat question. True, tbe court overruled the defendant’s motion, and held “tbat it is competent for tbe defendant to plead and show a breach of warranty, or tbat fraud in any way entered into said contract, either by representations made or facts withheld at tbe time of said medical examination.” On tbe trial, however, tbe defendant was permitted to introduce evidence tending to show tbat deceased bad heart disease at tbe time he made his application. Defendant’s counsel say tbat, but for tbe ruling on tbe motion, they might have introduced more evidence on tbat point. The door was open to them, and no reason appears why they did not introduce more evidence, if they had any such. We are in no doubt but tbat they introduced all tbe evidence on that subject at their command. They were allowed full latitude in their efforts to show a breach of warranty and fraud. Therefore tbe ruling on tbe motion, if erroneous, was without prejudice. Tbe certificate sued upon was issued on tbe tenth day of December, 1897, and tbe death occurred [526] on the seventh day of April, 1898. In February, 1897, deceased had an attack of la grippe, and during his illness consulted with one Boden about his affairs. Boden testifies that deceased said he wanted to make over his property to his son “before anything certain should happen, because he said he had heart trouble seriously, and was liable to die at any time.” This is the only evidence tending to show that deceased had heart trouble prior to the time the certificate was issued. This, it will bo observed, was at a time when he was suffering with an illness from which he afterwards fully recovered. As against this we have the certificate of the medical examiner that deceased was a fit subject for insurance, and the testimony of a number of his most intimate friends that he was not known to have any ailment of the heart. We should not extend this opinion by setting out or discussing the evidence at length as to the questions involved. It is sufficient to say, as to the defense of fraud aud breach of warranty, that we think the evidence fails to establish either. [527] 6 7 [526] II. We next inquire as to the defense of suicide, and first as to the admissibility of the verdict of the coroner’s jury, and its effect. Plaintiff’s counsel do not question its admissibility, and, in view of the purpose of the inquest and the manner in which it was required to be conducted, we think it is competent evidence on such an issue as this. As to its effect the defendant only claims that it is prima, facie evidence of death by suicide. Under the rule announced in Greenleaf Evidence, section 556, this being a judicial inquest, it is admissible in evidence, but not conclusive against persons not actually parties to it. In Insurance Co. v. Kielgast, 129 Ill. Sup. 557 (22 N. E. Rep. 467, 6 L. R. A. 65), the question of the admissibility and the effect of such an inquest was very carefully considered, and it was held that such documents were admissible; the court saying: “We do not hold that such evidence is conclusive, but only that it is competent evidence [527] to be considered.” See, also, Pyle v. Pyle, 158 111. Sup. 289 (41 N. E. Bep. 999); Grand Lodge v. Wieling, 168 Ill-Sup. 408 (48 N. E. Bep. 59). Giving to this verdict tbe effect claimed for it, and considering it in the light of the circmstances attending the death of the assured, we still think it is fully overcome by other evidence. Deceased was found dead in his bed at his own home, where he was staying alone, in the forenoon of April I, 1898. On the table in the room were found two letters in his handwriting, in German, one of which was to his wife. This letter was in evidence before the coroner’s jury, and was translated to them in this way. A Mrs. Freerrichs read it in German to her husband, and he translated it, as read by her, into English to the jury. Several of the jurors say, “As the letter was translated to us, he said that this Avould be the last letter his Avife Avould get from him.” The letter is in evidence in this case, and no such expression appears in it-The defendant questions the identity of the letter before us, but we are in no doubt but that it is the same found in the room and that was before the coroner’s jury, and that this erroneous translation had much to do with influencing the verdict of that jury. On the question whether the deceased died by his orvn hand the evidence is somewhat voluminous, and the circumstances numerous. We are not warranted in extending this opinion by setting out the evidence, nor is it necessary that we do so. The presumption is against death by suicide, and the burden is upon the defendant to overcome this presumption, and to establish its defense of death by suicide. The defendant claims that by the verdict of the coroner’s jury the presumption is overcome, and the burden of proving that the death Avas not by suicide rests upon the plaintiff. We have seen that this verdict is not conclusive, “but only that it is competent evidence to be considered”; but, if it should be said that the burden is shifted — a matter we do not determine — yet we think the plaintiff has so far OA^ercome the inference arising; [528] from the cirQumstances indicating suicide and from the verdict as that upon all the evidence death by suicide is not established. III. Appellant’s motion to strike appellee’s amended abstract for the reasons that it adds nothing and takes nothing from the original, does not deny the original, that it consists principally of questions and answers, and that the matters defendant presents are not necessary to a decision ■of the questions presented, is not well founded. In considering this case we have given close attention to these abstracts; and while there are some matters in the amended abstract that might have been omitted, and while the evidence given by questions and answers might have been curtailed, yet, upon the whole, it is a proper and necessary addition to defendant’s abstracts. The motion is overruled, .and for the reasons already stated the judgment of the district COUrt ÍS AFFIRMED.