Fletcher v. Sovereign Camp Woodmen of the World

81 Miss. 249 | Miss. | 1902

Whitpield, C. J.,

delivered the opinion of the court.

There is no material difference between the evidence in this cause and that in the case of Supreme Lodge v. Fletcher, 78 Miss., 377; 28 South., 872; 29 South., 523. The evidence before the circuit court of appeals of the United States does not materially vary the case. It seems to us very obvious from the opinion of Shelby, circuit judge (Fidelity, etc., Co. v. Lover, 111 Fed., 773; s.c., 49 C. C. A., 602), that the circuit court of appeals would have affirmed the action of the district judge if he had granted the peremptory instruction. That court distinctly says that the evidence ‘£ seemed to show, almost if not quite conclusively, that the deceased held the pistol that fired the shot,” but because it was not “absolutely certain that he committed suicide, ’ ’ from the evidence, the court was constrained, under its rules of practice, not to reverse the action of the district judge in refusing the peremptory instruction. As we construe this language, it is perfectly manifest the granting of the instruction would have been approved. No fact is required in civil cases, under our practice, to be shown with absolute certainty, ” where the lower court would not be willing, on the evidence, to permit a verdict to stand, except for one party, under our practice the court should give a peremptory charge. We think the evidence in this ease is so clear and convincing that Noah did commit suicide that the circuit judge should have refused to allow a verdict for plaintiff to stand, if rendered; and, under the practice obtaining in this state, it has long been settled that whenever that is the case the court should give a peremptory instruction for the party for whom alone it would permit a verdict to stand. It may be said, in passing, thkt if the terms of the policy here vary from the terms of the policy in the case in 78 Miss., 28 South., 29 South., and if; as we think, the verdict of the coroner’s jury was incompetent in this case as evidence of the cause of death, it nevertheless remains true that the evidence of suicide is so overwhelming that the peremptory instruction should have been given, whether the coroner’s verdict was in or out, since, either way, no verdict could have been properly reached, except for the defendant.

Affirmed.