100 Neb. 570 | Neb. | 1916
Defendant is a fraternal beneficiary society, and Lawrence Mulvaney, deceased husband of plaintiff, was at the time of his death a member in good standing. On December 6, 1908, while engaged in a controversy with one James Finley, Mulvaney was shot and instantly killed by Finley. Plaintiff, as the beneficiary named in the certificate of membership of her husband, recovered judgment in the district court for Lancaster county for the full amount thereof. Defendant appeals.
The .evidence shows that Mulvaney was engaged in the sheep business in Wyoming, and was grazing his sheep near the North Platte river. Finley was employed by one Josendal, a sheep raiser, to move his herder’s camp from place to place and to provide provisions for the herder. In the performance of his duty, he moved Josendal’s camp so as to. locate it near what was called ihe Bryan homestead, which was also located on the Platte river, and which Josendal had leased. Finley proceeded north from Alcova for a certain distance, then turned off the main road up a draw, in which it appears Mulvaney’s camp was located, and about noon pitched Ms camp about two miles from the river, and about a mile beyond Mulvaney’s camp. His outfit consisted of a sheep wagon, a supply wagon, four draft horses and a
If this testimony of Finley is to be believed, the defense of the society was fully established. Is there anything in the record that would justify the jury in
By instruction No. 8 the jury were instructed: “If a person shoots another who assaults him through mere cowardice, or under circumstances which the jury find from the evidence are not sufficient to induce a reasonable and well-grounded apprehension in the mind of an ordinarily courageous person of danger to life or great bodily harm, the law will not justify the shooting on the ground of self-defense, and in this case, if you find that under this rule Finley was not justified in shooting Mulvaney, then your verdict should be for the plaintiff.”
By No. 9 the jury were instructed: “That before a person can justify the taking of the life of a human being on the ground of self-defense, he must, when attacked, employ all reasonable means within his power, consistent with his own safety, to avoid the danger and avert the necessity of killing. And if in ■ this case the jury find from the evidence that Finley might reasonably have repelled the alleged assault of Mulvaney with his hands or feet or other weapon within his reach, less deadly than the revolver, then the shooting of Mulvaney was not justifiable as a matter of self-defense.”
That the defense pleaded by defendant, under the terms of its benefit certificate, is a valid defense, and that under the evidence it should have been sustained, is fully shown in Travelers Ins. Co. v. Seaver, 19 Wall. (U. S.) 531; Murray v. New York Life Ins. Co., 96 N. Y. 614; Bloom v. Franklin Life Ins. Co., 97 Ind. 478; Gresham v. Equitable Accident Ins. Co., 87 Ga. 497; Davis v. Modern Woodmen of America, 98 Mo. App. 713; and by the numerous authorities cited in those cases.
The court also committed prejudicial error in not giving instructions 9 and 10, requested by defendant. They correctly state the law as shown by .the cases above cited, and are in harmony with the evidence adduced at the trial. A case very much in point is Woodmen of the World v. Hipp, 147 S. W. (Tex. Civ. App.) 316.
The judgment of the district court is reversed and the cause remanded.
Reversed.