Page:North Dakota Reports (vol. 48).pdf/342

 Respondent is entitled to his statutory costs and disbursements on appeal.

, J. (concurring specially). This is an action upon an accident insurance contract. The complaint alleges:

“(1) That he (Weber) is the duly appointed, qualified, and acting guardian of the estates of Fred Bodman, Estelle Bodman, Esther Bodman, Maxine Bodman and Myron Bodman, who are the infant children of Fred J. Bodman, deceased.

“(2) That during the lifetime of the said Fred J. Bodman he was the holder of a policy issued by the defendant which is an accident insurance corporation, in which said policy the said defendant did insure the said Fred J. Bodman against injury or death by violent, external, and accidental means, and that said policy was fully paid up and in full force and effect upon the 12th day of May, 1919.

“(3) That the wards of the plaintiff hereinbefore named are the beneficiaries named in the said policy, and are entitled to the full benefit of all the provisions thereof.

“(4) That on the said 12th day of May, 1919, the said Fred J. Bodman came to his death by external, violent, and accidental means, to wit, by being run over and decapitated by a railroad train.

“(5) That the amount payable under the terms of the said policy im case of accidental death of the said Fred J. Bodman is the sum of $5,000.

(6) That no part of the same has been paid to the wards of plaintiffs, nor to any one authorized to receive the same in their behalf.”

The defendant in its answer admitted the allegations of paragraphs 1, Z, 3, 5, and 6 of the complaint The answer also contained the following allegation:

“Further answering, it alleges that the death of the said Fred J. Bodman was not caused by external, violent, and accidental means, but was caused by the willful and premeditated self-destruction of the said deceased with suicidal intent and was due wholly to his own acts, and not to the acts of any other person or agency.”

The action was tried to a jury upon the issues framed by these pleadings. The jury returned a verdict in favor of the plaintiff. The defendant moved for a new trial on the grounds: That the verdict is contrary to the evidence; that the verdict is contrary to the court’s instructions; that the court erred in giving, and in refusing to give, certain instructions to the jury. The motion for a new trial was denied, and the