154 Wis. 82 | Wis. | 1913
The proposition of first importance presented by appellant’s counsel, is that the court erred in not granting judgment of no cause of action, because intentional shooting of an assured by another is within the exceptions to liability mentioned in the policy.
The question thus raised turns on the construction of the policy. The language of it is quite peculiar and, manifestly, ambiguous. The words “intentional self-inflicted” are plain. They were clearly intended to cover a case of suicide while sane. Instead of the term often used to cover self-destruction under any circumstances, such as “death by his own -hand,' sane or insane,” so as to cover all cases of suicide, we find the quoted words followed by “or injury resulting from . . . any means or act which if used or done by the insured while in possession of all mental faculties would be deemed intentional or self-inflicted.”
It may be admitted that such language might reasonably be regarded as intended to cover homicidal death, and to avoid the effect of the rule that such events are within the meaning of “accidental” as used in the policy. But. it is quite as reasonable construction of the words to regard them as merely intended to cover cases of self-inflicted injuries while insane and the whole together another way of phrasing an exception from liability in case of self-inflicted injury or suicide, sane or insane.
The case, at the best for respondent, was exceedingly close on the question of whether the death was by suicide or by homicide. The evidence was so strong in favor of the former that, any substantial error bearing on the subject unfavorably to appellant, where the burden rested to establish the theory of suicide, could hardly have been otherwise than so prejudicial that, had it not occurred, the verdict might probably have been that the deed was caused by Ebeling himself, bringing the case within the rule as regards harmful error requiring a reversal in the interests of justice. Oborn v. State, 148 Wis. 249, 280, 126 N. W. 737. Therefore, some assignments of error presented for consideration as to rulings on evidence, are clearly vital to the judgment.
Complaints are made because testimony was permitted of what was said by Ebeling and Cora Edwards, immediately after the shooting, when others came upon the scene. We will pass such complaints by merely remarking that they relate to matters so closely connected with the occurrence of the homicide or suicide, whichever it was, as to spring from it directly and spontaneously, as it were, and be characterized thereby and rendered matters of res gestee. It is only things which immediately or so nearly arise out of the main fact as to be, to some extent, environed in and illustrate it, which are within the field of res gestee.
What has been said emphatically condemns the ruling of the trial court in permitting evidence from several witnesses
Evidence was permitted that, some two years before tbe occurrence, Cora Edwards admitted to have tried to take Ebeling’s life by shooting, and threatened to do it later, and that, shortly thereafter, she repeated such statements on an occasion of having a quarrel with him. There was no possible connection shown between such events, if they occurred, and tbe one under investigation. No reason is perceived why tbe evidence was permissible, while its prejudicial character is qryite apparent.
Complaint is made because the court permitted evidence to be given of a telephone conversation with Cora Edwards while Ebeling was in the hospital, in which she was said to have admitted having done the shooting. Clearly, if that were proper at all, it was for the purpose of discrediting the evidence of the Edwards woman as regards Ebeling having shot himself. Counsel for respondent seem to have appreciated that and presented it regularly. It was a matter of great difficulty, under the circumstances, to use that evidence for a legitimate purpose and prevent it from having an ille
One of the principal questions litigated was whether Ebel-ing, at the time he took out the policy, was free from any intemperate habit. That was submitted to the jury in this way: “At the time of making the application for insurance, was William T. Ebeling free from all intemperate habits, in respect to the use of intoxicating liquor?” An answer in the affirmative was given. A contrary answer would have resulted in a judgment for appellant. There was much evidence tending to show that Ebeling for a long time prior to the issuance of the policy had been addicted to the use of intoxicating liquor, to excess, — certainly enough evidence to have supported an answer to the question in the negative. For that reason it was important for the jury to understand the meaning of the words “intemperate habit,” as applied to the use of intoxicating liquor. To that end the learned circuit judge instructed the jury thus:
“Habit is something which implies repetition with regularity, and a man may have a habit of doing something which he does constantly, hourly and daily and weekly and monthly, or only yearly, but if he does it with regularity, we speak of it as a habit. Men may, for instance, have a habit of going to Europe every summer for recreation; we correctly speak of that as a habit although he didn’t go but once a year. A man may have a habit of walking from his place of resi*89 dence to Ms place of business on a certain street in a certain way. We speak of that as a habit, because it is something that he repeats, does regularly.”
Thus, it will he seen, the idea of “regularity” was iterated ■and reiterated, time and.again, so the jury must have gotten the notion that a person may imbibe intoxicating liquors excessively, destructively, and continuously, save irregular intervals of cessation, now and then, from one cause or another, without any thought or attempt at reformation, — and still not have any intemperate habit because of not indulging excessively at regular intervals of once or twice a day, or week or month. The idea of regularity, — recurring indulgence at regular intervals, — like the going from and coming to one’s home on a particular street and substantially at the same time each day or part of the day, was given to the jury with consummate definiteness so as to leave no danger of the vital element of “regularity” of drinking — regularity of excessiveness and regularity of time between indulgence — being lost sight of.
We are constrained to think a pretty plain collection of words, with “intemperate habit” as the dominant ones, was rendered rather hard for the lay mind to understand, and given such cast that, if the jury yielded their own commonsense idea thereof to the novel technical explanation given by the court, a very erroneous view prevailed. “Intemperate habit”! Are not those words very plain, nontechnical ? Words which are plain to a man of ordinary intelligence, education, and experience, can rarely be much illumined by long definitions, explanations, and illustrations. “Intemperate habit”! The common conception of that, as applied to the use of intoxicants, is use thereof, commonly, to excess. No idea of regularity of interval between indulgence, or degree of excessiveness, is thought of in using the words in every-day
Thus, in the case in hand, whether the indulgences were at regular or irregular intervals made no difference. The contrary idea so carefully and emphatically pressed upon the at? tention of the jury for their guidance must be regarded as prejudicial error.
Another error occurred on the trial of manifestly harmful character and which we could not regard otherwise than as fatal to the judgment, if there were no other such in the case. It is most unfortunate for counsel, by his own personal conduct, to inject fatal error into a case, since much of the consequences must fall on the client whose interests he is employed to conserve. The prejudice, in its pecuniary effect, in this case, is minimized by the fact that the fault is only one of several fatal matters. However, the lesson ought not to be lost of what harmful effect such an infraction as we must spread upon the record might have upon the party served by the transgressor, and which would occur directly therefrom, in this instance, except for circumstances not palliating the offense.
In addressing the jury in closing the case counsel for plaintiff referred to the appellant thus:
“The United States Casualty Company? The United States damnation and hell, creature of hell. United States*91 Casualty, hell and damnation, and behind that pnt devilish, malicious, fraudulent, trying to deprive this woman who is made the beneficiary in that policy of a just claim at the hand of these harlots.”
Those extraordinary expressions were interspersed with exceptions by counsel for appellant and requests for the remarks to be taken down, upon which counsel for respondent said, evidently with exhibition of much feeling, to the reporter: “Take everything down, if you see fit,” and then, ■apparently appealing to the jury, “Isn’t that true, gentlemen?” — followed by a further exception and the court sustaining it, characterizing counsel’s remarks as very improper and very unprofessional. Whereupon, the counsel, instead of submitting and making some sort of an apology for what, in cooler moments, he would have been very quick to condemn in himself or any one else, excepted to the ruling of the court and insisted that his remarks were proper, and there does not seem to have been any effort on the part of the court to repress him.
If there were anything in the case to afford any excuse for counsel’s language the record does not show it. It was not even a case where the attitude of defendant was of doubtful propriety from a moral, benevolent, or legal standpoint. The circumstances were such that appellant was well warranted in submitting the questions of fact involved to the judgment of a jury and the questions of law to the court. That such an occurrence could operate otherwise than harmfully, is hardly believable. Associate counsel now suggest that it was of such exceptional character that, the likelihood is that the harm, if any, was to the plaintiff rather than defendant. That is ingenious, but not at all persuasive since the verdict was for the former at all points, notwithstanding the evidence in favor of the latter might well have led to a contrary result.
It is with much regret that we are compelled to make this record. The error is assigned. The facts have to be stated. They have to be dealt with and dealt with rightly. Doubtless the eminent counsel who was so at fault, had some sort of provocation which might, at least, palliate the conduct, but which is not even suggested by anything appearing in the record. It is to his credit that no attempt is made now to justify it, and he stands for the suggestion that it was more likely than otherwise to have reacted because of its manifest unfairness. Our high regard for the eminent counsel who, in general, before this court is so helpful in the administration of justice, moves us to extend as much judicial charity as is proper while condemning as we have.
In closing on this it may well be said, that trial courts have
By the Court. — The judgment is reversed, and the cause remanded for a new trial.