265 N.W. 632 | Iowa | 1936
On April 1, 1925, defendant insurance company issued an accident insurance policy on the life of Mike Jovich, plaintiff being the designated beneficiary. The policy contained a provision for payment of $2,000 in event of death of the insured resulting directly and exclusively from bodily injury sustained solely through external, violent, and accidental means (excluding suicide, sane or insane) during the life of the policy. The policy remained in force when the insured died on June 19, 1933, as the result of a gunshot wound. By answer defendant denied that the insured came to his death by such means as to entitle plaintiff to recover, and alleged that the insured committed suicide and because of that fact defendant became discharged from all liability under the policy. At the close of the evidence of both parties, the court sustained defendant's motion for an instructed verdict, and judgment against plaintiff was rendered thereon. The substance of the grounds of the motion was that the undisputed evidence shows the insured came to his death by suicide, and that there is no competent evidence offered in the case which would entitle plaintiff to recover. The only question involved is whether the court erred in sustaining the motion. It becomes necessary to review the state of the evidence in the record, as it was when the district court sustained the motion.
The Raccoon river flows near by the south side of the town *947 of Valley Junction. Between the river and the town is a tract of bottom pasture land, with scattering small trees and clumps of brush. In this tract a path runs near to and more or less parallel with the river. A sand pump was being operated at the river, and this path seems to have been frequented by those going to and from its location. There was a north and south street crossing this tract known as Sixty-third street. The city dump was in the close vicinity. The path mentioned also extended to a red bridge on the river. At about 6:15 or 6:30 of the morning of June 19, 1933, one Rhiener, walking north on Sixty-third street, met the insured walking south toward the river looking over into the above-mentioned pasture land. The two men were old acquaintances. They spoke to each other and continued on in their respective directions. Rhiener testified that he saw both sides of the insured but saw no gun. South and west from this point, with his feet in the path we have mentioned, the dead body of the decedent was discovered nearly two hours later. There is no evidence with respect to insured during the intervening time. When found the insured had received a mortal gunshot wound. A 32-caliber bullet, having entered his head from the left side just above the ear in the temporal bone, had passed through the brain and lodged on the opposite side under the skin. The insured was wearing his usual work clothes.
To sustain the proposition that the insured committed suicide, appellee points out that there was evidence in the record tending to show the following matters additional to the foregoing: That the insured had purchased a 32-caliber revolver on June 17, 1933; that the bullet which brought about the death was of that caliber; that the gun so purchased was found, one shell discharged and the remaining cylinders loaded, in decedent's left hand, his first finger on the trigger; that insured was left-handed, and the bullet entered the left side directly opposite the point where it lodged in the right side of decedent's skull; that the inside of the hole had a seared appearance; that the weeds were not broken down or disturbed except where the body lay; that decedent worked intermittently, owed his landlady for room rent, had been in jail, drank to a considerable extent, had accumulated no property, was without immediate relatives, and unmarried.
There was a conflict in the evidence as to some of the matters *948 mentioned in the preceding paragraph, as there was also evidence tending to establish: That on the same Saturday afternoon of the purchase of the gun decedent visited his attorney, making arrangements to pay an account he owed, and at the time seemed perfectly normal and natural and good humored; that the gun was not in decedent's hand when the body was found but was lying on the ground near the body, and could be seen as one approached the body; that decedent wrote with his right hand, sometimes working left-handed with a sledge; that where the body lay the soil was sandy and vegetation sparse; that decedent had employment with the railroad company as a car inspector for many years preceding decease; that decedent's incarceration in jail was in 1932, from August 20 to September 10, on which latter date the charges made against him were ignored by the grand jury; that decedent was about 35 years old, about 6 feet tall, weighed about 190 pounds, was in good health, physically strong, was of good disposition, jovial, easy to get along with, well liked by those who knew him; never drank to such extent that he could not talk, walk, and take care of himself; that the skull where the bullet entered, and where on the opposite side it failed to pass through, is the thinnest part of the skull, of a thickness equivalent to about three sheets of paper; that it was where the skull was of this thickness that the bullet entered and failed to emerge on the opposite side; that the wound was just a little hole, clean cut; that there were no powder burns; the area around the wound was not burned and there were no marks outside the bullet hole; that there was no imprint of a gun barrel around the wound; that there was not noted any singeing of the hair; that on decedent's back from the nape of the neck, down his back to the buttocks, and extending down the leg into the shoe where the sock covered the foot was an extended area of blistered skin surface, the blisters on the foot being ruptured; that the blisters were deeper in the flesh the further they extended downwards toward the feet; that in the opinion of appellant's expert these blistered surfaces had been caused by scalding hot water, in the opinion of appellee's experts had been caused by the body lying in the sun for two or three hours in the position where originally found; that on the left leg above the knee was a superficial wound four and one-half inches long that was in the process of healing; that a 32-caliber revolver is a powerful gun; that *949 a bullet from the revolver in question would penetrate a human head; that on account of the thinness of the skull where the bullet entered it would offer correspondingly slight resistance; that in the opinion of witness the gun was held at a considerable distance when fired; that decedent's room was searched after his death, and when the room was again entered after the funeral there was found a box of 32 shells on the desk that were not there when the first search was made.
In considering this state of the record, the district court in ruling on the motion for directed verdict, in view of the issues and record, was bound to take into consideration the presumption that death is not due to suicide, although the existence of such presumption does not create a legal situation in which the question whether decedent committed suicide must invariably be submitted to the jury. The rule is that when the nonexistence of the presumed fact is conclusively established by the record, the existence of the presumption does not make a jury question as to whether the presumed fact did or did not exist. Warner v. Equitable Life Ins. Co.,
In Inghram v. Nat. Union,
Appellee would exclude other human agencies, starting out with the assumption that decedent fired the shot from his own gun. Proceeding on such assumption, appellee says that the straight-in course of the bullet establishes intentional shooting, because decedent must have placed the gun against the side of his head with his left hand and fired. But in Wood v. Sovereign Camp of Woodmen,
The district court should have overruled defendant's motion. The case is reversed.
Appellant's motion to strike appellee's amendment to abstract is overruled. — Reversed.
DONEGAN, C.J., and ALBERT, KINTZINGER, PARSONS, ANDERSON, and HAMILTON, JJ., concur.