72 Neb. 860 | Neb. | 1904
Lead Opinion
The Modern Brotherhood of America, defendant in error in this cáse, is a fraternal beneficiary association doing business in this state. It issued a membership certificate to one George S. Hardinger upon his joining a lodge of this association at Overton, in Dawson county, Nebraska, on May 3, 1899, which provided, in substance, that in case of the death of said member while in good standing in the lodge the beneficiary therein named shall participate in the mortuary fund of said association to an amount not exceeding $3,000 within 90 days after proof of such death. This certificate also contained the following proviso: “If the holder of this certificate shall die by his own hand, whether sane or insane, then this certificate shall be null and Amid and of no effect, and all moneys which shall have been paid and all rights and benefits which may have accrued on account of this certificate shall be absolutely forfeited.” Plaintiff in this action is the wife of George S, Hardinger and the guardian of the beneficiary named in the certificate.
On the 5th day of April, 1902, Hardinger was found on Wooded Island, in Jackson Park, in the city of Chicago, Illinois, dead or dying from a pistol shot wound in his head. Payment of benefits was refused by the association, and this action was brought in the district court for Dawson county by the guardian of the beneficiary to enforce payment thereof. The association for its defense alleged suicide. On the trial, when all the evidence had been taken, the trial court directed a verdict for the defendant. This was done upon the theory that there was but one reasonable conclusion to be drawn from the evidence, and that was that Hardinger took his OAvn life. Judgment was rendered upon this verdict, from which error is prosecuted to this court by plaintiff.
The only assignment of error necessary to review is that the court erred in directing a verdict under the testimony. A careful review of the evidence contained in the bill of
Q. Do you remember the occurrence of finding a man there dead that evening?
A. Yes.
Q. State what you first observed.
A. I was about 200 yards away. I heard the shot, and then officer Brown was coming along, and we thought it was somebody shooting at ducks in the lagoon at the time. Officer Brown said, “There is somebody shooting-ducks on the lagoon.” He went through the shrubbery and I went in the edge of the shrubbery, and there was an old log laid in the shrubbery, and we saw Hardinger’s body lying alongside of the log. Brown was in the edge of the shrubbery at the time and I was right close to him, about a couple of yards.
Q. Go on and describe now just what you observed as to the position of the body.
A. He had evidently been sitting on this log, and he had a revolver at his right-hand side, and the bullet lodged*863 in the left eye. He was not quite dead at the time, so officer Brown stayed Avith him, and I Avent over to the Wooded Island police station, and they came Avith the Avagon.
This Avitness further testified that the revolver along by the side of deceased had three empty chambers in it and three chambers Avith cartridges, one of Avhich appeared to have been recently discharged. He also said that Hardinger Avas unconscious Avhen they came to him; never spoke, and only lived a feAV minutes after their arrival. He further described the Avound, saying the bullet had entered through the right temple near the right eye and penetrated to the left eye, Avhere in his judgment it had lodged. He also testified that they could not see Hardinger from Avhere they were standing when the shot was fired, even if he had been standing up, because there was an elevation or a kind of a hill between them and the place of the shooting. He also said deceased’s hat was lying on the Avest side of the log and his body on the east side. The testimony of officer Brown was the same in all essential points as that of officer Maher, differing solely in his estimate of the distance between the deceased and the officers at the time the shot Avas fired, and also stating that the hat of deceased Avas on the log or the stump of the log by which he was lying, AA'hen found. This slight Arariance tends to tliroAV no light on any material circumstances surrounding the death. When officer Maher notified the authorities, an ambulance Avagon was sent to the island, and the body of deceased was taken to the morgue, Avhere it was identified by his widow, plaintiff in this action, and turned over to her for burial. On Hardinger’s body the officers found, among other things, a memorandum book giving his name and place of residence, the number of his watch, and the size of his hat, and containing the following entry: “There is nothing to tell, simply weary.” This memorandum book was offered in evidence, and has the appearance of a book that had been carried for some time by the deceased. The entries 'in
This is all the material testimony in the record tending to throw light on the facts and circumstances surrounding Hardinger’s death, and the question now arises, could
It is urged by counsel for defendant in error that this case falls clearly Avithin the rule recently announced by this court in Sovereign Camp of the Woodmen of the World v. Hruby, 70 Neb. 5. In this case it was held that the facts and circumstances surrounding the death of Hruby so clearly and unmistakably pointed to suicide that no other reasonable conclusion could be draAvn from them, and therefore that, as a question of law, the court should have directed a verdict in favor of the defendant. In our judgment there is a well defined difference between the facts and circumstancs surrounding Hruby’s death and
“In our opinion the question of what is the proximate cause of death in an action like that noAV under consideration, is a question of fact to be determined by the jury from a consideration of the evidence and the determination of this question should not be Avithdrawn from the jury unless, from an admitted state of facts, all reasonable men fairly exercising their judgments must draw the same conclusion.”
The legal presumption is always against suicide, and consequently the burden of proving self-destruction is upon the party pleading it. Modern Woodmen of America v. Kozak, 63 Neb. 146; Travelers Ins. Co. v. McConkey, 127 U. S. 661; Schultz v. Insurance Co., 40 Ohio St. 217.
In Modern Woodmen of America v. Kozak, supra, it was said by this court:
“In the case of Leman v. Manhattan Life Ins. Co., 46 La. Ann. 1189, it is said: ‘In such action, Avhen the defense is self-destruction, the burden of proof is on the insurer to establish the suicide, and Avhen circumstantial evidence only is relied on, the defense fails, unless the circumstances exclude with reasonable certainty any hypothesis of death by accident or by the act of another.’ Travelers Ins. Co. v. Nitterhouse, 11 Ind. App. 155; Jones v. United States Mutual Accident Ass’n, 92 Ia. 652. In the last cited case it is said: ‘Where, in an action on an accident policy, it appears that the insured was killed by a pistol shot, the burden is on the insurer to shoAV that the shot Avas not accidental/ ”
We think that under the facts proved in this case reasonable minds might draw different conclusions as to AVhether the death of Hardinger was self-inflicted with suicidal intent or whether it resulted from other causes.
We therefore recommend that the judgment of the dis
For the reasons stated in the foregoing opinion, the judgment of the district court is reversed and tiie cause remanded for further proceedings in conformity wit.li tiiis opinion.
Reversed.
Rehearing
The following opinion on rehearing was filed April 5, 1905. Judgment of reversal vacated. Judgment of district court affirmed:
This case is before us a second time for our consideration. In an opinion, ante, p. 860, written by Mr. Commissioner Oldham, and approved by the court, it ivas held that the trial court erred in directing a verdict for the defendant below. A rehearing was allowed,, the case has
Q. After he was sick in June he never went to work again as bookkeeper, did he?
A. He did not.
Q. And after he was sick in June he was confined to the house for some time, wasn’t he?
A. A few days.
Q. And he was under the care of the doctor for some time, was he not?
A. In June?
Q. Yes, and until along in October, he was still doctoring with Dr. Lovewell, wasn’t he?
A. I don’t know; I don’t remember.
Q. And in August he was under the delusion that his son was stolen?
A. At that time, yes.
Q. And from that time on did he go down town every day?
A. He was in the house about a week until he was well again, and he went .down town every day.
Q. That was after he was wandering around?
A. Yes.
Q. Then he would go down town?
• A. Yes.
Q. Do you know what he went down for?
*872 A. Just went down for pastime.
Q. Went down for pastime?
A. That’s what he said.
Q. Now you say after that time in August, when he was away a day and a half, after he got well he was all right mentally. Do you mean that?
A. He was all right, hut he was sick.
Q. Well mentally?
A. Well, I think he was at times.
Q. You think he was at times?
A. Most of the time.
Q. A part of the time he was mentally unbalanced?
A. Well, I wouldn’t call it unbalanced.
Q. Under depression?
A. Well, he was dizzy.
Q. And along toward evening he would have fits of melancholia, or depression?
A. No, he was the same all the time, but suffered from insomnia; couldn’t sleep.
It further appears that on the morning of April 5,1902, Hardinger left his house and went to the city as usual; that at about seven o’clock that evening two policemen, who were on duty on what is called Wooded Island, in Jackson Park, heard a shot fired at the distance of from 100 to 200 yards from them, and hurried immediately to the place from whence the sound came to ascertain its cause. They found Hardinger lying on his back by the side of a log; his blood and brain oozing from a wound inflicted by a pistol shot on the right temple at the edge of the hair line in front of the ear; the wound was blackened around its edge where the bullet entered; a revolver lay at his right hand with three cartridges in its chamber, one of which had been recently discharged, and the smell of powder smoke still lingered about the place. A careful examination disclosed no footprints or traces of the presence of any other human being near the body, or in that immediate vicinity; his clothing was undisturbed; his watch, ring, purse and other effects were found on
With the foregoing facts established by the evidence the district court, on the motion of the defendant association, directed the jury to return a verdict in its favor, and the only question for our consideration is, was such direction error? It may be stated at the outset that self-destruction is not to be presumed. In other words, the presumption arising from the general conduct of mankind is that a sane person Avill not destroy his OAvn life. But this is a rebuttable presumption, and easily yields to physical facts clearly inconsistent with it. It is not proof, nor does it stand in the way of proof, and when sufficient evidence is introduced to overcome this legal presumption it disappears. On mature reflection we are of unanimous opinion that the proof in this casé clearly overthrows the presumption above mentioned, and excludes all probability of death by accident or by the hand of another. The undisputed facts and circumstances in this case lead naturally and rationally to but one inference, and that is that George S. Hardinger shot himself intentionally. It seems to us that no other fair, just or reasonable conclusion is possible. When the facts naturally and reasonably lead the mind to but one conclusion, there must be something in the circumstances, something someAvhere in the evidence, to suggest murder or accident. No circumstances can be pointed out consistent with the use of the Aveapon, for some unexplainable purpose, from which ac-dental shooting probably resulted. To indulge in such inference is to engage in fanciful conjecture. The basis of
The rule is well established that, if, from the undisputed facts, different minds may not honestly reach different conclusions without reasoning irrationally, it is not error for the trial court to withdraw the case from the consideration of the jury, and direct a verdict consistent with the facts. Knapp v. Jones, 50 Neb. 490; Shiverick v. Gunning Co., 58 Neb. 29. In this case different minds cannot arrive at different conclusions. The evidence points clearly and unequivocally to suicide. In order to reach any other conclusion one must go outside of the record and resort to mere speculation or conjecture. Our former opinion followed Modern Woodmen of America v. Kozak, 63 Neb. 146, which counsel for the plaintiff insist is in point and authority for our present decision. An examination of that case shows that nearly all the facts and circumstances tended strongly to prove that Kozak came to his death by his own hand. It was shown, however, beyond question, that the bullet which was taken from the wound in Kozak’s head, and which evidently caused his death, was several sizes smaller than the caliber of the revolver which was found near his body, and could not have been fired
We are now of opinion that the district court did not err in directing the jury to return a verdict for the defendant, and, for that reason, our former judgment is vacated and the judgment of the district court is in all things
Affirmed.