DIGEST OF INSURANCE CASES EMBRACING THE DECISIONS OF THE SUPREME AND CIRCUIT COURTS OF THE UNITED STATES, OF THE SUPREME AND APPELLATE COURTS OF THE VARIOUS STATES AND FOREIGN COUNTRIES, UPON DISPI TED POINTS IN FIRE, LIFE, MARINE, ACCIDENT AND ASSESSMENT INSURANCE, AND AFFECTING FRATERNAL REFERENCE TO ANNOTATED INSURANCE CASES IN EDITORIALS IN LAW JOURNALS ON INSURANCE CASES. VOL. IV FOR THE YEAR ENDING OCTOBER 31, 1891. BY JOHN A. FINCH, OF THE INDIANAPOLIS BAR. INDIANAPOLIS: THE ROUGH NOTES COMPANY, PUBLISHERS. ACCIDENT INSURANCE. * Policy-Loss of Both Feet-Paralysis.—The policy provided that the principal sum should be paid if the insured, from a violent and accidental injury, which should be externally visible, "should suffer the loss of * two entire feet, *." Held, that where the insured was accidentally shot in the back, producing total paralysis of the lower part of the body, and entirely destroying the use of both feet, he had suffered the loss of two entire feet within the meaning of the policy. Sheanon v. Pacific Mutual Life Ins. Co. (Wis. S. C.), 46 Northwestern Reporter (Nov. 8, 1890), p. 799; 42 Albany Law Journal, 468; 20 Insurance Law Journal, 90; 9 Lawyers' Reports, Annotated, 685. The insur Policy-Accidental Death-Disease-Construction. ance was against "bodily injuries, effected through external violent and accidental means;" and was not to extend "to any death or disability which may have been caused wholly or in part by bodily infirmities, or disease existing prior or subsequent to the date" of the policy, "nor to any case except where the injury is the proximate or sole cause of the disability or death." Held, that death resulting from a malignant pustule, caused by the infliction upon the body of putrid animal matter containing poisonous "bacillus anthrax" is death from disease, and not from accidental cause, within the terms of the policy. Reversing 3 N. Y. Sup. 237. Bacon v. U. S. Mutual Acc. Ass'n (N. Y. C. A.), 25 Northeastern Reporter (Nov. 21, 1890), p. 399; 20 Insurance Law Journal, 3; 9 Lawyers' Reports, Annotated, 617; 33 New York State Reporter, 591; 42 Albany Law Journal, 493. Practice-Evidence-Admissibility of Policy Without Applica tion. In an action on a policy of insurance, a copy of the policy being attached to the declaration, and the declaration being otherwise sufficient under the code, the policy is admissible in evidence at the trial, without the application on which it was founded, notwithstanding the policy refers to the application, and makes it a part thereof, and notwithstanding the application sets forth matter not written in the policy, but expressly declared therein to be warranties. Proofs of Death-Sufficiency of.-Where the policy stipulates for preliminary proofs of loss, and the declaration alleges that such proofs were furnished, and where the whole declaration is denied by plea, the plaintiff is entitled to verify the allegation by submitting in evidence the affidavits which were furnished to defendant as preliminary proofs. But the affidavits are evidence for the sole purpose of showing compliance with the terms of the policy as to preliminary proofs, and the sufficiency of such proofs is for the court. Same-Same. Though the policy stipulates that the preliminary proofs of death, etc., to be furnished "shall be direct and affirmative proof," any proof that ought to be satisfactory will suffice, although it may involve inference of the main fact from other facts and therefore be properly denominated "circumstantial," rather than "direct" evidence. Refusal to Pay-Motive of Company-Evidence.—The good or bad faith of an insurance company in refusing to pay after demand is to be determined by the evidence deduced at the trial on the merits of the controversy, and not by ex parte affidavits produced to the company as preliminary proofs, or for the company's information to induce voluntary payment. Probable cause for refusing payment will negative the question of bad faith, and without such probable cause refusal to pay will be at the peril of the company. Ex parte affidavits are not admissible to prove the good or bad faith of defendant. Disappearance of Insured-Evidence-Res Gestæ.—The person whose life was insured having disappeared while a hunt was in progress, in which he with two others participated, what one of his comrades said to the other on the scene of the hunt, when they met a few moments after the disappearance occurred, and also when they were on the way to search for their missing companion, was admissible in evidence as part of the res gesta, to explain their conduct in abandoning the hunt, engaging in the search, and conducting it in a particular manner. Same-Same-Same.-An exclamatory affirmation, such as "Sheppard has killed himself!" though part of the res gesta, is not evidence of the matter of which it affirms, where all the circumstances show that it was a mere expression of opinion. Same-Same-Same.-The manner and appearance of a speaker whose utterances belong to the res gesta are relevant evidence, and that he looked wild, and seemed excited, is matter of fact and not of opinion, for which reasons ought to be specified. The signs of emotion may be described in general terms, without any enumeration of particulars. Same-Same-Same.-The res gesta of the disappearance in this case terminated with the conclusion of the search, and subsequent excitement, conversations, etc., of the persons connected with the transac tions, and upon a different scene, were irrelevant and inadmissible. Evidence as to Death- Opinion of Family.-The action being by a wife upon a policy of insurance in her favor upon the life of her husband, the insurance being against death by accident within one year from the date of the policy, and he having disappeared within the year, the fact that his family regarded him as dead, or recognized him as being dead, is not competent evidence in behalf of plaintiff. Same-Family Relations.-That plaintiff and her husband were attached to each other, and lived together on affectionate terms up to the time of his disappearance, is relevant and admissible, as tending to throw some light, in connection with other evidence, on the nature and cause of his long-continued absence. Same-Non-Receipt of Letters.-That a sister of plaintiff, who resides with her, never saw any letter or communication in a mysterious manner which would lead her to suppose that plaintiff was in communication with her husband, or that she (the sister) had nothing to lead her to believe that he was still alive, is irrelevant and inadmissible. Same Surroundings of Place of Disappearance.-The opinion of a witness as to the difficulty of recovering the body of a man if he fell into the river at a certain place, is admissible, the place being identified as the place at or near which the insured disappeared. Otherwise, where the place in the river is not identified as being the place, or near the place, where the disappearance occurred. Same-Same-Expert Witness.-A man who, as pilot and mate, is well acquainted with a river, is competent to give his opinion as to whether one falling into it would likely be found after death, and among the reasons for his opinion the witness may cite an instance of a person who fell overboard many years ago, and, though searched for, was never found. Evidence of Existence of Insured-Rebuttal.-Witnesses acquainted with the husband of plaintiff having testified in behalf of the company that they saw him alive in Alabama after his disappearance, and others, not acquainted with him, that they too in Alabama saw a man of whom an authentic photograph of plaintiff's husband exhibited at the trial appeared to be a likeness, such evidence can not be rebutted by the testimony of a witness on the part of the plaintiff that he knew her husband, and saw a man in Georgia whom he at first thought was him, but changed his opinion, upon being informed that the man was and had been a citizen of the town at which the witness met him. Such testimony is irrelevant and inadmissible. Excuse for Not Paying Policy-Evidence.-It is no excuse for an insurance company for delaying payment on a life policy that a report was current and generally believed in the neighborhood in which the person insured lived that he was not dead, but had absconded for the purpose of defrauding the defendant, and other like companies, nor is such report admissible to corroborate witnesses who testify that they saw him alive after his disappearance; nor is it admissible to repel an imputation cast by plaintiff's counsel upon the company that it had originated the report, although the circumstances might show that the imputation was unfounded, and although the plaintiff herself, as well as others, communicated the report to the first insurance agent that visited the neighborhood. |