Opinion
Opinions on pages 373-388 omitted.
For Opinion on Hearing, see 212 Cal.Rptr. 466,696 P.2d 1308.
[187 Cal.Rptr. 86]Norvin L. Grauf, San Diego, for plaintiff and appellant.
Adams, Duque & Hazeltine, James L. Nolan and Ronni B. MacLaren, Los Angeles, for defendant and respondent.
COLOGNE, Associate Justice.
Alice M. Searle appeals a judgment in favor of Allstate Life Insurance Company. Her action was initiated to recover benefits under the life insurance policy her husband, Martin Searle, had obtained ten months before he took his life. The policy limited the company's liability to refund of paid premiums if the insured "committed suicide, sane or insane" within two years of the effective date of the policy.
Following summary judgment for Allstate, we reversed (Searle v. Allstate Life Ins. Co., 96 Cal.App.3d 614, 158 Cal.Rptr. 5), holding the policy was ambiguous in that suicide means to "intentionally take one's life" and an insane person is incapable of forming the intent to commit suicide. The ambiguity was attributed to Allstate which drafted the policy and we stated sanity presents a question of fact which had to be resolved.
In the jury trial which followed, the sole issue to be resolved was whether Martin Searle had the requisite mental capacity to form the intent to take his own life. The parties stipulated the matter would be submitted to the jury on two special verdict forms:
"1) Did Martin Searle have the mental capacity to intend to take his own life, including awareness of the nature and consequences of his act of self-destruction at the time he shot himself?
"2) Did Martin Searle have the mental capacity to govern his own conduct at the time he shot himself?"
The court instructed the jury, over Searle's objection:
"In this action, the plaintiff has the burden of establishing by a preponderance of the evidence all of the facts necessary to prove the following issue: That Martin Searle did not intend to take his own life. [187 Cal.Rptr. 87]
"If you find by a preponderance of the evidence that Martin Searle did not have the mental capacity to intend to take his life, including awareness of the nature and consequences of his act of self-destruction at the time he shot himself, you will answer 'NO' to the first question on the special verdict form.
"If you find by a preponderance of the evidence that Martin Searle did not have the mental capacity to govern his own conduct at the time he shot himself, you will answer 'NO' to the second question on the special verdict form.
"If you find that at that time Martin Searle did have the capacity to intend to take his life, including awareness of the nature and consequences of his act at the time he shot himself, you will answer 'YES' to the first question on the special verdict form.
"If you find that at that time Martin Searle did have the mental capacity to govern his own conduct at the time he shot himself, your answer will be 'YES' to the second question on the special verdict form.
"By a preponderance of the evidence is meant such evidence, as when weighed with that opposed to it, has more convincing force and the greater probability of truth. In the event that the evidence is evenly balanced on either question, then on that particular question your finding will be 'YES'.
"In determining whether an issue has been proved by a preponderance of the evidence, you should consider all of the evidence bearing upon that issue regardless of who produced it."
This instruction on the burden of proof was error.
The law of California, settled before the turn of the century, is that the "one seeking to recover on an insurance policy must aver the loss and show that it occurred by reason of a peril insured against, but he need not aver the performance of conditions subsequent, nor negative prohibited acts, nor deny that the loss occurred from the excepted risks. [Citation.]" (Dennis v. Union Mut. Life Ins. Co., 84 Cal. 570, 572, 24 P. 120; Blasingame v. Home Ins. Co., 75 Cal. 633, 635, 17 P. 925; Orfanos v. California Insurance Co., 29 Cal.App.2d 75, 82, 84 P.2d 233; Meyer v. Pacific Employers Ins. Co., 233 Cal.App.2d 321, 327-328, fn. 5, 43 Cal.Rptr. 542.) Where suicide is asserted to be an element causing the death the courts have consistently held, in the case of a life insurance policy as distinguished from an accident insurance policy, it is the burden of the insurance carrier to prove the death came within the exclusion provisions of the policy (Dennis v. Union Mut. Life Ins. Co., supra, 84 Cal. 570, 572, 24 P. 120; and see Zuckerman v. Underwriters at Lloyd's, 42 Cal.2d 460, 473-474, 267 P.2d 777). In Beers v. California State Life Ins. Co., 87 Cal.App. 440, 262 P. 380, the Court of Appeal considered a life insurance policy having limited recovery in case of suicide. While holding there was a presumption of sanity and apparently believing it would be a person temporarily insane who would commit suicide, the court made the following statement:
To be distinguished are those cases involving an accident policy where the beneficiary's right is dependent upon his ability to establish the death was caused by "accidental" means (i.e., not intentional self-destruction). (See Zuckerman v. Underwriters at Lloyds, supra, 42 Cal.2d 460, 473-474, 267 P.2d 777; cf. Byers v. Pacific Mut. Life Ins. Co., 133 Cal.App. 632, 636, 638, 24 P.2d 829, stating there is a presumption against suicide.)
At another point in the opinion, Beers merely referred to "the presumption that deceased's death was not intentionally self-inflicted." (87 Cal.App. at p. 468, 262 P. 380.)
"It must be borne in mind that the [insurance carrier] entered the trial charged with the burden of overthrowing the presumption that the deceased was sane and that her death was not suicidal but from a natural cause. [Citations.] It rested upon the [insurance carrier] to overcome said presumption, or, in other words, to support the affirmative defense of suicide 'by a preponderance of clear and satisfactory evidence, direct or circumstantial.' [Citations.] And whether the defendant [187 Cal.Rptr. 88] introduced sufficient satisfactory proof to overcome that presumption or to sustain that defense was a question to be solved by the jury, with whose conclusion we are not privileged, legally, to interfere, unless the evidence of suicide is upon its face obviously such as to compel us to hold that no other inference but that of intentional self-destruction may reasonably be drawn." (Id. 87 Cal.App. at pp. 456-457, 262 P. 380.)
The carrier asserts that in meeting this burden under the limited interrogatories presented to the jury, it is entitled to a presumption of sanity (Evid.Code, § 522) and since that is the only unresolved issue in this case, it should have the instruction that Searle has the burden of proof. We do not believe Evidence Code section 522 provides such a complete basis for resolving the factual issues. That section reads simply, "The party claiming that any person, including himself, is or was insane has the burden of proof on that issue."
In order to establish the defense to liability under Allstate's life insurance policy, Allstate must prove a "suicide" and to do that it has the burden of proving the deceased destroyed himself with the requisite intent. The first component, self-destruction, having been removed as an issue, it remained for the carrier to prove the act was done with the requisite intent. Did Martin have the mental capacity to form the necessary intent and was Martin aware of the nature and consequences of his act, i.e., did he intentionally take his own life? The carrier's burden was to prove these elements to bring the death within the exclusion clause.
Giving the carrier the benefit of the presumption of sanity is not enough to meet the carrier's burden of proof. It must also prove Martin intended to take his life. A sane person could accidently shoot himself while handling the weapon or believe the gun was unloaded, making the discharge of the weapon unexpected. If that should be the case, this would not be an intentional act of taking one's life under the exception. Thus, whether Martin Searle was sane is not the ultimate question for the jury. His sanity, of course, is relevant in support of the carrier's position that Martin acted with full knowledge of the consequences of his act but it is not controlling. Proof of sanity shows capacity to form the intent. But the carrier must go on and prove Martin intentionally took his own life, and proof of his awareness of the nature and consequences of his act of self-destruction would permit the inference of intent. The carrier has the burden of proof of all these factors in order to get the benefit of the exclusion.
We should point out too, in passing, Evidence Code section 522 states the party claiming any person is or was insane has the burden of proof on the issue. Mrs. Searle does not necessarily contend Martin was insane; it is the insurance carrier who is trying to prove Martin is sane. Mrs. Searle's testimony about her husband's reaction following the firing of the fatal shot and particularly his facial expression at that time suggest he might have been surprised when the gun went off. That could provide an inference the self-destruction was not intentional.
The burden of proof the acts were intentional is properly on the carrier and it was error to instruct the jury otherwise. The judgment must be reversed.
For the assistance of the court on retrial, we should state the refusal to give the jury a definition of suicide was not error. While suicide is decidedly the focus of this action, the parties have by stipulation and, we might add, properly narrowed the factual issue to a question of intent, whether Martin was aware of the nature and consequences of his act and had the freedom of choice to control the situation. The definition of suicide thus becomes unnecessary. There was no error under the circumstances of this case in the refusal to define suicide. We observe, however, there is ambiguity and potential error in the first interrogatory given in that the thrust of the question as given is on capacity only and not intent. It does not literally call for a jury decision on Martin's actual awareness of the nature and consequences of his [187 Cal.Rptr. 89] act of self-destruction. It should be revised appropriately in order to obtain a decision directly covering the following points: "If Martin was sane and intended to take his own life, then he committed suicide, and Allstate is liable for repayment of the premiums only. If, however, Martin was insane when he took his own life, then he did not commit suicide and Allstate is liable for the full value of the policy." (Searle v. Allstate Life Ins. Co., supra, 96 Cal.App.3d 614, 616, 158 Cal.Rptr. 5.)
Judgment reversed.
GERALD BROWN, P.J., and STANIFORTH, J., concur.