WALKER, J., dissenting. *Page 55 At the close of the testimony the Court instructed the jury that if they believed the evidence, they would answer the first issue "Yes"; the second issue "No," and the third issue "$2,000," the amount stipulated in the policy.
The defendant objected to this charge of the Court, and the brief for defendant filed in the cause stated that all other exceptions are abandoned.
We are of opinion that the objection to the charge cannot be sustained.
On the trial, the plaintiff introduced the policy insuring the life of the deceased for plaintiff's benefit for the sum of $2,000, proved the payment of premiums, which, by the terms of the policy kept same alive, till June 18, 1905; and then introduced a clause of the defendant's answer which admitted that deceased died on the 25th of April, 1905.
According to the authorities, this testimony makes out a prima facie case for plaintiff, and nothing else appearing, would justify the charge of the Court as given. Spruill v. Ins. Co., 120 N.C. pp. 141-150.
Defendant's first objection rests upon the allegation that no satisfactory proof of the death of the insured has been made; that the requirements of the policy as to the form and quantum of proof have not been fully complied with.
We fail to discover any essential defect in the matter referred to; but if such defect existed, we do not think the objection is now open to defendant. *Page 56
So far as the quantum of proof is concerned, it is admitted in the answer that the insured is now dead, and was at the beginning of the suit.
And as to the form, to which this objection is chiefly urged, it (36) is well established that where proofs of death have been formally made and the company retains them without suggesting any defect or failure in this respect to comply with the requirements of the policy, and finally refuses to pay the claim, it thereby waives any defect in the formal proofs of death and acknowledges that the requisite proofs were received by it. Niblack Benefit Societies and Accident Insurance, Vol. II, sec. 326, and authorities cited.
Here, proof of death was made on blanks supplied by the company in July, 1905. So far as the testimony shows, no objection or suggestion of any defect was made as to the proof until answer filed November following, denying liability on the policy; and then in such general terms that plaintiff could hardly discover what change or correction was desired. Under such circumstances, the objection as to the form of proof is properly held to be waived.
Again, the charge of the Court is urged for error in connection with the second issue, the issue being in form as follows:
"Did the insured die by his own act or hand with intent to commit suicide?"
The policy, bearing date June 18, 1904, contains a condition that if the insured, within one year from the issue of the policy, die by his own act or hand, whether sane or insane, the company shall not be liable for any greater sum than the premiums, etc. A condition of this kind is held to be a valid stipulation. Spruill v. Ins. Co., 120 N.C. p. 140; Vance on Insurance, p. 532.
And it is generally held also that such a provision, in its terms, refers to suicide and does not include a killing by accident, even although the act of the insured may have been the unintended means of causing death. Vance on Insurance, supra.
The issue was therefore properly framed: "Did he die by his (37) own hand with intent to commit suicide?"
It is also accepted doctrine that on such an issue addressed to this question, the presumption is against an act of suicide, and the burden is on the party who seeks to establish it. 1 A. and E., 331; Vance on Insurance, 523; Lawson's Presumptive Evidence, 241; Spruill v. Ins. Co.,supra; Mallory v. Ins. Co., 47 N.Y., p. 52.
In Lawson on Presumptive Evidence, supra, the case is thus put: "H. is found dead. An examination reveals that his death was caused by taking arsenic. His life is insured, and the question arises whether *Page 57 his death was caused by suicide or accident. The presumption is that it was caused by the latter."
This being the presumption, and defendants having offered no evidence, the question arises whether, on the testimony introduced by the plaintiff, there is, in law, sufficient evidence for the consideration of a jury tending to rebut the presumption. The testimony we find in the record pertinent to this question will be found in the statement of plaintiff and of the coroner, on file pursuant to a requirement of the policy, as a part of the proof of death. That of plaintiff is as follows:
"Give cause of death (full particulars). Ans.: Was caused by gunshot wound in left side. Everything pointed to an accident in handling the gun, which was supposed to have been empty."
That of the coroner:
"Was death the result of the deceased's own hand or act? Ans.: Yes; or by some unknown hand, accidentally or otherwise."
The statement of the coroner is colorless and without probative force of any kind. It amounts, in fact, to his saying what the physicians had said in answer to the same question: "They didn't know."
The testimony then discloses that the deceased was found dead (38) with a gunshot wound in his left side. There is no testimony as to the temperament, condition, or domestic, social or business life of the deceased which would tend to indicate suicide, or as to any declaration, written or oral, of like tendency. There is nothing offered as to the position of the body, the placing of the gun, or the character and course of the wound which would support such a theory.
The testimony before us leaves the matter as stated, with the objective fact, "Found dead with a gunshot wound in his left side," with the additional and only explanatory statement of the applicant, "Everything pointed to an accident in handling the gun, which was supposed to be empty," and this supports the presumption raised by the law that the killing under such circumstances is presumed not to be with suicidal intent.
We think it clear, therefore, that His Honor was correct in charging the jury that if the testimony was believed, they should find according to this presumption and answer the second issue "No."
There is nothing in Spruill's case, supra, pp. 150-151, relied on by defendant, which militates in any way against our present decision. In that case the plaintiff had stated, in his proof of loss, that the insured "had died by his own hand"; and the Judge writing the opinion had held that this statement, standing unexplained, was an admission of suicide, and at once shifted the burden of proof. The decision proceeded upon the idea that by fair intendment, and by uniform construction of the courts, these words, unexplained, amounted to an allegation *Page 58 or admission of suicide; and the opinion; on this point, says: "The plaintiff, though she went on the stand herself, in nowise contradicted the import of these words; nor did she testify to any facts tending to show she had used them by mistake or inadvertence. (39) Her admission, unexplained and uncontradicted, justifying his Honor's direction to the jury."
But there is no such admission in the proof offered here. Even if the statement of the applicant permits the interpretation that the deceased had hold of the gun when the death wound was inflicted; not only is there no admission of suicide, but such an inference is repelled by positive averment. "Everything pointed to an accident in handling a gun supposed to be empty."
There is no error in the charge of the Court, and the judgment is affirmed.
No error.