#### Lilly Seiler, *et al.,*Minors by Their Next Friend, Appellees, v. The Economic Life Association of Clinton, Iowa, Appellant.

*881 2 3 *87Insurance: Copt of application. The attachment to an insurance policy of a copy of the application, followed by the word “signed,” *88but without the signature of the applicant, does not entitle the company to rely on any part of such application, under Acts Eighteenth General Assembly, chapter 311, section 2, providing that all insurance companies shall on the issue of any policy attach thereto “a true copy” of any application and that if it neglects to do so it shall be forever precluded from pleading, alleging or proving such application or any part thereof.

2 4 ‘ Forfeiture: *Suicide.*Where a life insurance policy contains no stipulation as to suicide and is taken out in good faith, it is not avoided, as against a *beneficiary*named therein, by the fact that assured, while sane, purposely took his own life.

5 Instructions: Harmless error. An instruction that fraud might be proved by circumstances from which the inference of fraud is *irrisisiible*is harmless, where it is so qualified by succeeding instructions that the party seeking to prove fraud could *not be*prejudiced.

6 *Same.*Error in giving instructions, or refusing the defendant the opening and closing, is harmless, where the case might have been taken from the jury.

*Appeal from Clinton District Court.*— Hon. P.B. Wolfe, Judge.

Friday, April 8, 1898.

Plaintiffs sue to recover insurance upon the life of one Joseph Seiler, deceased. Two actions were brought, each upon ia different policy. The action® were consolidated, in the trial court. Defendant made one answer to the two claims, as combined. There was a trial to a jury, verdict and judgment for plaintiffs, and defendant *appeals.*—

Affirmed.

*Hayes db Schuyler*for appellant.

*Galvin H. George*for appellees.

Waterman, J.

*89
      1
      *88— The undisputed facts in the case are that the defendant company issued to one Joseph Seiler the two policies in suit, numbered, respectively, 17,146 and 17,147. By these policies the life of said Seiler was insured for the benefit of the plaintiffs in the *89sum of two thousand dollars; each policy being for the sum of one thousand dollars. Both of these policies were issued upon a single application. This application was signed, “Joseph Seiler”; and a copy 'thereof, with the exception that the signature was omitted, and in its place appeared the word “Signed,” was attached to policy No. 17,146. No copy or purported copy of the application was attached to policy No. 17,147, but'there was an indorsement thereon in these words: “For copy of application, see policy No. 17,146, issued to same party.” The policies were taken out on the thirty-first day of August, 1895; and; on the seventh day of October following, Seiler committed suicide. The policies contained no provision in relation to suicide, 'but there was this clause in the application, “I also warrant and agree that I will not die by my own act, whether sane or insane, during the period of three years following the date of the issue of the policy for which application is hereby made.”

II. Defendant, in its answer, sets up, in one paragraph, that Seiler, while in a sound mental condition, took his own life. This was demurred to by plaintiffs; and the demurrer sustained, to which defendant excepted. No question is made as to the propriety of thus attacking by demurrer a paragraph in a pleading. It was alleged by defendant in another paragraph of its answer that Seiler, with the intent to defraud defendant company, procured it to issue said policies; he at the time intending to take his own life, as in fact he shortly thereafter did. This matter was also assailed by a demurrer, which was overruled. Evidence was introduced upon this branch of the case, and this single issue of fact was submitted to the jury.

*90
      2
      *89III. The appellant assigns fifty-nine errors. We think the matters can be condensed under five heads: (1) Was the application a part of policy No. 17,147, to *90which, neither a copy ora purported copy was attached? (2) Was it a part of policy No. 17,146, to which was attached a copy that omitted the signature of the applicant? (B) Will the suicide of the assured operate to avoid, a® against a beneficiary named therein, a policy which does not in. terms except death in that manner from the risk assumed? (4) Did the trial court err in it® instructions? (5) Had the appellant the right to open and close before the jury?

IY. Taking up the questions in the order of stating them, we shall devote no time to the first, for it will be disposed of by what we have to say under the next head.

3 Y. Attached! to policy No. 17,146 was a copy of the application made by the assured, except, as already said, that the signature of the applicant was omitted, and in the space where his name appeared in the original was the word “Signed.” The trial court refused to permit.the introduction in evidence of this application, when offered by defendant as part of the contract. This ruling, we take it, was 'based on the provisions of section 2, chapter 211, Acts Eighteenth General Assembly, the material portions of which we set out: “All insurance companies or associations shall, upon the issue or renewal of any policy, attach to such policy, or endorse thereon, a true copy of any application or representations of the assured, which, by the terms of such policy, are made a part thereof, or of the contract of insurance, or referred to therein, or which may in any manner affect the validity of such policy. The omission so to do shall not render 'the policy invalid, but if any company or association neglects to comply with the requirements of this section, it-shall forever be precluded from pleading, alleging, or proving such application or representations, or any part thereof, or falsity thereof, or any parts *91thereof, in any action upon such, policy. * * *” This section has been often construed. For a quite recent exposition of its meaning we refer to *Goodwin v. Society,*97 Iowa, 226. It is 'argued on behalf of the appellant that all of the statements and representations made ‘by the assured were in the copy that was attached to the policy, and that he could not have been prejudiced by the omission of his signature, for he must have known that he -signed the original. But it seems to- us that the very purpose of the statute was to avoid, so- far as possible, any dispute a:s to- the assured’s knowledge of the contract. The requirement is that a copy of the application shall be attached. We do- not understand this to call for a *fac simile,*but it certainly demands at least a substantial reproduction of the instrument. The -signature is an essential part of the application, and' all that is essential in the original should -appear in the copy. It will be noted that in the alleged copy it is not stated by whom the original is signed. In Wisconsin they have a statute which is the counterpart of the one under consideration, and in *Dunbar v. Insurance Co., 72*Wis. 492 *(40*N. W. Rep. 386), it was held that ,a copy of the signature of the applicant was -essential, in order to make a copy of the application, within the meaning of the law. The case was, in its facts, like the case ait bar, except that the blank for the signature in the copy contained nothing to indicate that any signature wa-s -appended. The court, in speaking on the subject, says: “We are of the opinion that the copy of the application attached to the policy, not having the copy of the name of the applicant appended thereto, cannot be said to be a copy -o-f -such application, within the meaning of the statute. The signature is the thing which gives force to- the application, and, when signed with knowledge of its contents-, is conclusive on the insured. * * * We think that the *92signature of the party to an, instrument which receives its vitality -solely from such signature is such a substantial part of it that ia copy of it muist contain such signature.” As having some bearing, we also cite *Kyser v. Railway Co.,*56 Iowa, 207, The trial court was right in holding that the application in this case was no part of the contract, and that the statements, therein co-uldi no be given in evidence.

4 VI. The defense of suicide was set up in two-forms. In one, as we have said, it went to the jury. The paragraph of the answer to which the demurrer was sustained was as follows: “That the said Joseph Seiler on or about the 7th day of October, 1895, and while in same mental condition, and able to understand the moral character and 'consequences of his act, committed suicide, and intentionally and purposely killed himself, by shooting^rThe question thus presented by the ruling on the demurrer is: If a policy of insurance on life, containing no stipulation as to suicide, is taken out in good faith by the assured, will it be avoided, as against a beneficiary named therein, by the fact that the assured thereafter, while sane, deliberately and purposely took his own life? The authorities are not many on the subject, and they are not seriously in conflict. While there are a number of cases in which something has been said upon this matter in the way of *dicta,*there is but one in which it has been expressly decided 'that the suicide of the assured), if sane, will -avoid a policy that contains no provision of forfeiture in such case, and that is *Ritter v. Insurance Co.,*18 Sup. Ct. Rep. 300, decided at the October term, last, of the federal supreme court. The opinion in this case in the circuit court of appeals appears in 17 C. C. A. 537, and 70 Fed. Rep. 954. This last citation is given 'because we shall have occasion to refer to this opinion in the course of what we shall say. It was held in the *93
      *Ritter Case*that .there could be no recovery on a policy of insurance by the executor of one who, while sane, intentionally took Ms own life, even though the policy contained no clause of forfeiture because of such act. We think that ease is readily distinguishable from the case at bar. In the *Ritter Case*the action was brought by the personal representative of the assured, whose claim had to be made through the wrongdoer, wMle here the suit is instituted by beneficiaries named in the policy, and-who claim in their own right. An investigation will diclose that the distinction we make is material, and! supported by authority. In *Moore v. Woolsey,*4 El. & Bl. 243, the policy contained a stipulation avoiding it, as far a® regarded the executors and administrators of the assured, if he died by his own hand, but leaving it in force to the extent of any interest acquired by a third person. The plea was that the assured had committed suicide. Replication that one Kettle, before the death' of the assured, had acquired by assignment an interest in the policy. Upon these issues, Lord Campbell, delivering'the opinion, said: “If a man insures hi® life for a year, 'and commits suicide within the year, bis executors cannot recover upon the policy, a® the owner of a iship, who insures her for a year, cannot recover upon the policy if within the year he cause her to be sunk. A stipulation that in either case upon such an event the policy would give a right of action would be void.” This is the language quoted in the *Ritter Case,*and it was *obiter*only. But Lord Campbell said sometMng more, and something not only pertinent to the issues before him, but that has direct application to the matter we are considering. He continues: “But, where a man insure® Ms own life, we can discover no illegality in a stipulation that if the policy should afterward® be assigned, *bona dde,*for a *94valuable consideration, or a lien upon it should afterward® be acquired, *Iona fide,*f or a valuable consideration, it might be enforced for the benefit of others, whatever may be the means of his death. * * * The supposed inducement to commit suicide .under such circumstances cannot vitiate the condition, more than the inducement which the lessor may be supposed to have to commit murder should render invalid a beneficial lease granted for lives. When we 'are called upon to nullify a contract on the ground of public policy, we must take care that we do not lay down a rule which ma.y interfere with the innocent and useful transactions of mankind.” If public policy does not stand in the way of a recovery by ¡an assignee, we can discern no reason why it should in the case of a beneficiary named in the contract. It may be -said that the assignee ■spoken- of is one whose claim rests upon a consideration paid. To this we would say that the claim of the beneficiary is talsoi based upon a consideration- paid by the assured. If it should further be -said, that public policy doe® not bar a recovery by the assignee because the interests of creditors furnish little or no motive for the self-destruction of 'the assured, our answer would be this: The motives for suicide are manifold and varied. An inquiry as to what inducement is most likely to impel one to the act is profitless, for any rule of law that would prevent a recovery by these plaintiffs would operate in like manner against a mere creditor, if he were the beneficiary named. And, further, we might call attention to the *Ritter Case,*in which the assured admittedly sacrificed his life for the benefit of his creditor®. In the opinion in the *Ritter Case*in the circuit court of ¡appeals it is said: “In the cases brought to ■our attention where suicide during sanity, by the person whose life was insured, was held not to be a valid defense, the policy was issued for the benefit of some *95other person, or ran. independent interest, by assignment or otherwise, had been acquired-, by a third- person.” Here is the -distinction' plainly made. So-, also, in the opinion of Mr. Justice Harlan on-appeal, we think the same idea is expressed. In commenting on an expression used in another case, he says: “This- observation was irrelevant to the case before the court, and cannot be regarded as determining the point in judgment. If it was meant there could be a recovery by the personal representative, * * * we cannot concur in that view.” Another and a convincing reason for thinking that the doctrine announced in the *Ritter Case*was not intended to go- further than to deny a right of recovery to the personal representatives of the assured is that no one of the several cases in which beneficiaries named in the contract have been held entitled to recover was mentioned in that opinion. We shall now refer to these eases: *Fitch v. Insurance Co.,*59 N. Y. 559, is the first. Suit was- brought by the wido-w, to whom the policy was payable. The contract contained no clause avoiding it in case of suicide by the assured. On)e defense tendered was that the assured took his own life. Evidence to sustain it was excluded by the trial court. In affirming this ruling the court of appeals says: “The policy contained no -stipulation that it should be void in case of the -death of the insured by suicide. It was not taken out for the benefit of Fitch, but of his wife and children. Although they were bound by his representations-, and any fraud he may have committed in taking out the policy, the policy having been obtained through Ms agency, yet they were not bound by any acts -or declarations done or made by him after the issue of the policy, unless such acts were in violation of some condition of the policy.” *In Darrow v. Society,*116 N. Y. 537, (22 N. E. Rep. 1093), the plaintiff was the beneficiary under the contract. The assured committed suicide. There was a provision in the policy *96that it should “he void if the member herein shall die in consequence of a duel, or by the hands of justice, or in violation of, or an attempt to violate, any criminal law of the United States, or of any state or 'country in which the member may be.” Held that, suicide not being a crime in New York, the condition of the policy was not violated; and the plaintiff could recover. *Kerr v. Association,*39 Minn. 174 (39 N. W. Rep. 312), is a case similar in principle to the last. The same holding in favor of a beneficiary has been made by this court in *Goodwin v. Society, supra.*The policy sued upon there provided for its forfeiture in the event of suicide within two years, and by its express terms it was incontestable after that time. After the lapse of that period the assured took his own life. The policy was issued to the wife. In an action by her, we held she could recover. Now, if suicide is a risk that the company is forbidden, by considerations of public policy, to take, it could not have been held as within the agreement not to contest; for, if a contract to insure as against the risk of suicide is void, the waiver here must have been invalid, and the defense should have been sustained. The question was brought directly' to the attention of the court in argument, as appears from the language of the opinion. These are the cases which we have been able to find. We wish now to add a few words on principle,^ by way of emphasis of a thought already expressed. It'' is not the wrongdoer who makes claim here, nor any representative whose rights are to be measured by those of the wrongdoer, but persons who acquired an interest at the time the policy was taken out, and who are not in any way responsible for the loss under it. The defendant might well have guarded against this contingency in its contract. Not having done so, we think it is now in no position to complain./; , *f*

VII. Error is assigned on the refusal of the trial court to give instructions asked by defendant. Fifteen *97instructions were asked. .We need not set them out. We find that the charge, as given, fully covered the case.

5

6 VIII. Instruction No. 7 of the court’s charge is complained of. In this paragraph the jury .was. told that fraud was not to be presumed, but, like any other fact, might be proved by circumstances “from which the inference of fraudáis natural and irresistible.” It is the use of the word “irresistible” to which objection is made. The word is certainly not well chosen, but it is qualified to such an extent by the instruction next following that its employment could not have prejudiced defendant. We might very well put our rulings on the instructions on another ground. We have carefully read the testimony offered by defendant to establish the faet that, at the time he took out these policies, Seiler intended to commit suicide, and thus defraud defendant; and we find nothing in it to support any such claim. The trial court might with propriety have taken the case from the jury.

IX. What has just been said disposes of defendant’s contention that it was entitled to open and close. If error was committed by the trial judge in this matter, — which we by no means hold, — it was wholly without prejudice. The judgment below- will be affirmed.