Thommen v. Jewelers' & Tradesmen's Co. — 72 N.Y. St. Rep. 758

Majority

p. 758

Franciska Thommen, Resp’t, v. Jewelers’ and Tradesmen’s Company of New York, App’lt.

(New York City Court, General Term,,

Filed January 28, 1896.)

Headnote

'Insurance—Libe—Forfeiture.

Under a policy of life insurance, which provides that “death of the member by his own hand” is not a risk assumed, and that the amount recoverable in such case shall be restricted to the assessments paid in and interest thereon at 6 per cent., the company, in case of suicide, is only required to pay the amount of the assessments paid in and 6 per cent, interest.

Appeal from a judgment in favor of plaintiff.

Mooney & Shipman, for app’lt; Zeller & Miehling, for resp’t.

—The defendant is only liable to the plaintiff for risks assumed by its policy of insurance. The ninth provision of said policy provides: “Death of the member by his own hand, whether voluntary or involuntary, sane or insane, at the time, is not a risk assumed,” etc.; but, in case of such, there shall by payable a sum equal to the amount of the assessments paid by said member with six per cent, interest. It is therefore quite clear that, under said policy, suicide by the insured was not a risk assumed. The evidence in this case shows that the insured shot himself, and died eight days subsequently, from the effects of such shot. Therefore, he was a suicide, and under its policy the defendant was only required to repay the amount of the assessments paid in and six per cent, interest; and for that amount, only, was the plaintiff entitled to a verdict herein. The trial justice directed a verdict in favor of the plaintiff for $2,000 and interest. Because of the reasons above stated, it was error for him to have done so. He should only have directed a verdict for the assessments paid in and six per cent, interest thereon, as he was requested to do by the defendant’s attorney.

Judgment reversed, with costs to the appellant to abide the event.

All concur.