Page:North Dakota Reports (vol. 48).pdf/333

 Words and phrases, Vol. 1, p. 70.

“Where the insured killed himself while insane, and not conscious of what he was doing, such act was not suicide within the meaning of the’ policy and a recovery could be had on the policy.” Blackstone v. Life Ins. Co. 42 N. W. 156; Crandall v. Accident Ins. Co. 33 U. S. 236; 30 Law ed. 740; Rodel v. Life Ins. Co. (U.S.) 24 Law ed. 433.

“Where defendant relies upon rules and by-laws of the association they must be set out in the answer, and it is not sufficient to allege merely that they have been violated.” 1 Cyc. 288; 1 Corpus Juris 494; Gray v. National Benefit Association. (Ind.) 11 N. E. 477; Stevens v. Cont. Ins. Co. 12 N. Dak. 463.

“A stipulation is a judicial admission, and is absolutely conclusive upon the parties agreeing to it, prohibiting any further dispute of the fact admitted or waived, and any use of evidence to disprove or contradict it, or inconsistent with it. 12 Enc. of Ev. p. 100 and many cases cited.

“When admissions of this character are formally made for the purpose of waiving certain proofs or rules of practice, they are conclusive upon the client and cannot be withdrawn.” Jones on Ev. p. 324; Greenleaf on Ev. J 339; Wigmore on Ev. Vol. 4, 2588-2592

, J. This appeal is from a judgment in plaintiff’s favor for $5,000, with interest and costs, and from an order denying defendant’s motion for a new trial.

The action is brought by plaintiff as guardian of the estate of the minor children of Fred J. Bodman, deceased, to recover on what purports to be a certain accident insurance policy in the sum of $5,009 issued by the defendant to Fred J. Bodman in his lifetime.

The insurance is against injury or death by violent, external, and accidental means. On December 11, 1913, defendant issued its policy to the insured. It would appear from the testimony, that this policy (Exhibit A) may not have been the one in force at the time death occurred. There is some evidence to indicate that it lapsed; that the insured applied for reinstatement, and requested a duplicate of the policy, claiming that he was unable to find the old one.

A discussion of this point is not very material, as will appear from the following stipulation:

“(1) That Fred Bodman, Estelle Bodman, Esther Bodman, Maxine Bodman, and Myron Bodman are the infant children of Fred J. Bodman,