Wells Fargo Bank & Union Trust Co. v. Mutual Life Ins.

Defendant moves for a new trial upon several grounds, only one of which need be noticed, viz., that “the court’s instruction to the jury to the effect that the burden of proof to establish suicide was on the defendant insurance company” was error.

The action is upon a policy of life insurance issued by defendant company upon the life of Walter A. Radius; the plaintiff being trustee under a trust agreement. The policy provides for the payment of $15,000 to the beneficiary, said trustee, upon receipt of proof of death of Radius occurring while the policy is in foree. The policy contains a so-called “double indemnity” provision, by which defendant agrees to pay'an additional $15,000 in ease death resulted from “bodily injury effected solely through external, violent, and accidental means.”

Radius’ death was caused by asphyxiation due to carbon monoxide gas, generated by his automobile upon which he had been working in his garage. -

In his opening statement, defendant’s counsel said:

“The -defense that is pleaded and that is being urged by the Mutual Life Insurance Company in this ease is a dual one. The first defense is one to which practically all of the cross-examination so far…