#### ELIZABETH W. PARKER v. NEW YORK LIFE INSURANCE COMPANY.

(Filed 22 October, 1924.)

1. Insurance, Life — Policies—Contracts—Stipulations.

A provision in a life insurance policy that in the event of the self-destruction of the insured within two years from the issuance of the policy, only the premiums paid thereon shall be recoverable, is reasonable and will be enforced.

2. Same — Actions—Defenses—Suicide—Burden, of Proof.

Where an insurance company defends an action upon a stipulation in the policy limiting recovery upon the death of the insured to premiums paid thereon in the event of self-destruction, the burden is on the defendant to show this defense if it is relied on.

3. Same — Ambiguity—Interpretation of Contract.

Where a policy of life insurance is ambiguously expressed or capable of more than one meaning, its terms are construed to have the meaning that is favorable to the insured.

4. Same — Accident—Questions for Jury — Instructions.

A provision in a policy of life insurance that limits recovery upon the policy to the premiums paid thereon in case of self-destruction, sane or insane, does not preclude a recovery in the event of the insured’s having met his death from a pistol shot accidentally at his own hands, and where it is established that the deceased insured met his death from a pistol shot at his own hands, and the evidence was conflicting as to whether he did so intending self-destruction or otherwise, it is proper for the court to instruct the jury in effect, that the recovery would not be limited to the amount of the premiums paid, should the jury find it was unintentionally or accidentally done.

5. Same — Issues—Appeal and Error.

Under the pleadings and evidence in this case: Held, an issue was correctly submitted “Did the insured die by his own hands or not, with intent to commit suicide?”

Appeal by defendant from Daniels, J., and a -jury, at June Term, 1924, of CbaveN.

T. D. Warren and J. H. String-field for plaintiff.

Moore & Dunn for defendant.

Clarkson, J.

Tbe action involves collection of $1,000 life insurance policy on tbe life of Eoger L. Parker, husband of tbe plaintiff, wbo died 29 January, 1923, within a year from tbe issuance of said policy. Tbe defendant denied liability, and in defense set up a provision contained in tbe policy which reads as follows:

> “Self-destruction: In tbe event of self-destruction during tbe first two insurance years, whether tbe insured be sane or insane, tbe insur-*404anee under this policy shall be a sum equal to the premiums thereon, which have been paid to and received by the company.”

The court submitted the following issue to the jury, which was answered by them in the negative: “Did the insured, Roger L. Parker, die by his own hand or act with intent to commit suicide?”

The court below charged the jury, in part, as follows: “It is alleged that R. L. Parker, the insured, died on the 29th of January, 1923; that prior to his death he had paid the premium on this policy of insurance, and that after his death in January, 1923, the plaintiff furnished the defendant with proof of his death. The defendant admits the execution of the policy, the payment of the premium, the death of Roger L. Parker, and the furnishing of proof of his death, but it alleges there was a clause in this policy of insurance as follows (the court read said clause as above set forth). So that, gentlemen, the only question presented to you under the pleadings in this case is embraced in the issue which I have submitted, 'did the insured, Roger L. Parker, die by his own hand or act with intent to commit suicide?’ And upon the issue the burden is upon the defendant, the Insurance Company, to satisfy you by the greater weight of the evidence that he shot himself with a pistol with intent to take his own life. It is admitted that he died from the result of a pistol shot, and the sole question for you is whether this evidence satisfies you by its greater weight that he shot himself intentionally. If the evidence satisfied you that he shot himself accidentally, then you would answer the issue No.’ .Unless you are so satisfied, however, by the greater weight of the evidence, the burden being upon the defendant, that he intentionally shot himself and-died as a result of the wound inflicted, then your answer to the issue would be ‘Yes.’ The desire for life is so great in all mankind, there is no presumption that a man commits suicide, and the person who alleges that- he committed suicide may show by greater weight of the evidence that he intentionally killed himself, and if he does not satisfy the jury by the greater weight of the evidence, then it is the duty of the jury to answer the issue No.’ ”

The defendant tendered the issue “Did the insured cause or produce his own self-destruction ?” The court below refused to submit the issue, and submitted the one set forth in the charge above.

In Thaxton v. Ins. Co., 143 N. C., p. 36, an issue like the one submitted in the instant case was held not to be error. Hoke, J. (now C. J.) said:

> “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 of 18 June, 1904, contains a condition that if the insured, *405within one year from tbe issue of tbe policy, die by bis own act or band, wbetber sane or insane, tbe company shall not be liable for any greater sum than tbe premiums, etc. A condition of this kind is held to be a valid stipulation. Spruill v. Ins. Co., 120 N. C., p. 141; 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 tbe act of tbe insured may have been tbe unintended means of causing death. Yance on Insurance, supra. Tbe issue was, therefore, properly framed: ‘Did be die by bis own band with intent to commit suicide?’ It is also accepted doctrine that on such an issue addressed to this question, tbe presumption is against tbe act of suicide, and tbe burden is on tbe party who seeks to establish it. Am. and Eng. Ency., vol. I, p. 331; Vance on Insurance, p. 532; Lawson’s Law of Presumptive Evidence, p. 241; Spruill v. Ins. Co., supra; Mallory v. Ins. Co., 47 N. Y., p. 52.”

In Hay v. Insurance Co., 168 N. C., p. 88, tbe issue was as in tbe case at bar: “Tbe only issue in controversy upon tbe second trial was tbe following: ‘Did tbe insured die by bis own band or act with intent to commit suicide?’ which was answered in favor of tbe plaintiff, and tbe only exceptions seriously debated are to tbe charge of bis Honor instructing tbe jury that tbe burden was upon tbe defendant to prove by • tbe greater weight of tbe evidence that tbe deceased committed suicide, and to tbe refusal to charge tbe jury to answer tbe issue ‘Yes’ if they believed tbe evidence. In our opinion, there is no error in either ruling. When an insurance company seeks to avoid payment of a policy on account of suicide, tbe burden of tbe issue is on tbe defendant (Thaxton v. Ins. Co., 143 N. C., p. 37), and tbe ‘weight of tbe evidence must be with tbe party who has tbe burden of proof, or else be cannot succeed.’ Chaffin v. Mfg. Co., 135 N. C., 100. Tbe evidence as to suicide was circumstantial, and while sufficient to justify an answer to tbe issue in favor of tbe defendant, it was not conclusive, and tbe inference of an accidental killing could be accepted.”

In Wharton v. Ins. Co., 178 N. C., p. 136 (This case was tried also by tbe learned and conscientious judge .who tried the present case), tbe insurance company set up tbe same defense in that case as in tbe instant case. Tbe policy of insurance contained tbe same clause: “In event of self-destruction during tbe first two years, wbetber tbe insured be sane or insane, tbe insurance under this policy shall be a sum equal to tbe premiums thereon which has been paid to and received by tbe company and no more.” Tbe court, in that case, said: “It can serve no purpose to elaborate tbe testimony for there was evidence tending to sustain tbe theory that tbe death was caused by an accident, and tbe burden of proof was upon tbe defendant to establish its allegation that tbe death was *406deliberate self-destruction. Tbe function of tbe jury was to determine tbe fact. Tbe burden of proof being on tbe defendant to prove its defense, tbe court could not adjudge tbat an affirmative defense is proven, for tbat involves tbe credibility of tbe witnesses, wbicb is a matter for tbe jury. Spruill v. Ins. Co., 120 N. C., 141, and numerous citations therein in Anno. Ed. Besides, there was evidence to go to tbe jury tbat tbe death of tbe deceased was accidental.”

Tbe same issue was submitted in Kinsey v. Ins. Co., 181 N. C., p. 478, as in tbe present case. In tbat case tbe jury found for tbe defendant, and on appeal this Court found no error.

All tbe evidence introduced, both by plaintiff and defendant, shows tbat tbe case was fought out on tbe theory whether Roger L. Parker destroyed himself by committing suicide or be accidentally killed himself. There was no evidence as to insanity. ¥e think tbe issue was a proper one, under tbe language of tbe policy, and tbe facts in tbe case.

Tbe defendant contends: “Tbe Court can readily see tbat tbe term 'suicide” is wholly inconsistent with tbe provisions of this policy, because in this policy it is provided tbat whether tbe insured 'be sane or insane,’ and an insane person could not commit self-murder, mental derangement would be a complete defense against self-murder or suicide, while under tbe terms of this policy and tbe decisions of tbe Court, tbe purpose of tbe defendant was to protect itself from any liability wbicb might produce tbe insured’s own' self-destruction, whether be be sane or insane.”

In Union Mut. Life Ins. Co. v. Payne, 105 Fed. Rep., p. 118, it is said: “If it occurred by suicide, whether tbe insured was sane or insane, tbe plaintiffs could not recover on tbe policy. If it occurred by accident or by assassination, tbe defendant is liable on tbe policy. Accidental or unintentional self-killing does not forfeit a policy for suicide. 'Self-destruction,’ as used in tbe contract of insurance here in question, means suicide, and does not include accidental self-killing. May on Ins. (2d ed.), sec. 207; Breasted v. Trust Co., 59 Am. Dec., 489, and note, sec. 3. The insurers frame their own contracts, and, when they choose, they may insert express stipulations against accident. 'If they prefer, for tbe purpose of getting custom, to omit such a stipulation, and to leave tbe matter in doubt, tbe doubt ought to be resolved against them.’ Keels v. Association (C. C.), 29 Fed., 201.” Clarke v. Equitable Life Assur. Soc. (U. S.), 118 Fed., 374.

We do not think tbat tbe language in tbe policy is clear enough to be construed as meaning tbat self-destruction included accidental killing, but tbe reasonable and righteous interpretation of tbe clause in tbe policy is tbat self-destruction meant suicide, whether tbe insured be sane or insane. Under tbe language of tbe policy, accidental killing *407would not be so construed as to mean self-destruction, such as would avoid tbe policy. If the defendant so intended, bow easily it could have been written in the policy, “Self-destruction: In the event of self-destruction (which includes accidental killing of one’s self) during the first two insurance years, whether the insured be sane or insane, the insurance under this policy shall be a sum equal to the premiums thereon which have been paid to and received by the company.”

We said, in Allgood v. Ins. Co., 186 N. C., p. 420 (30 A. L. R., p. 652) : “The language of the rider is ambiguous and not clear. The rider, on its face, indicates it was a form prepared by defendant. If the defendant intended that the automobile should be locked when leaving same unattended,’ it could have said so in plain language. The defendant, no doubt, has men skilled to draw its insurance policies and riders. The rider could have been drawn in simple language, well understood by all; for example, ‘The insured undertakes, during the currency of this policy, to always lock the automobile when unattended.’ ‘While we should protect the companies against all unjust claims, and enforce all reasonable regulations necessary for their protection, we must not forget that the primary object of all insurance is to insure.' Grabbs v. Ins. Co., 125 N. C., 399.”

We have examined the exceptions and assignments of error made by defendant with care., and can see no error in them.

There was some evidence to go to the jury — slight, but sufficient — that the injury was accidental. This was a question for the jury.

From the entire record we can find no error in law.

No error.