109 Kan. 138 | Kan. | 1921
The opinion of the court was delivered by
In April, 1919, James Madison O’Brien insured his life in favor of his mother, Elizabeth O’Brien-, the policy providing that there should be no liability thereon if within a year the insured should die by his own act. He was killed by a bullet from a pistol on August 8, 1919. His mother brought this action against the insurance company. -A defense was made upon the ground that the insured had committed suicide. A jury trial resulted in a verdict and judgment for the plaintiff and the defendant appeals.
O’Brien was living on a farm with his wife and their three-year-old daughter. A Mrs. McCain worked for them. The house had four rooms, two upstairs and two down, the stairway being in a hall between the two downstairs rooms. On the night of August 7 one of the upper rooms was occupied by O’Brien and his wife and the other by a neighbor, Ben Beck. One Ray Smith also stayed at the house over night. Early the next morning O’Brien was called to the telephone by a friend who asked for his help in threshing. O’Brien answered that he would come. O’Brien also called another neighbor and asked him if he could send a man to help thresh. The neighbor told him he could and also asked if O’Brien could help him hay the next week, receiving an affirmative answer. Twenty minutes later — a little before six o’clock — while Beck and Smith were -standing just outside the front door and O’Brien’s wife and Mrs. McCain were in the kitchen, they heard a shot. Mrs. O’Brien ran upstairs and screamed. The others followed her. O’Brien was lying on his back on the bed in which he and his wife had slept, the mattress resting directly on the floor. He
Three witnesses who were sufficiently qualified as experts to render their opinions admissible testified that in their judgment the appearance of the wound and clothing indicated that the revolver was not close to the body when it was discharged, but at a distance estimated severally at two to four feet, two to two-and-a-half feet, and fifteen inches to two-and-a-half feet.
We think the evidence justified submitting to the jury the question whether or not O’Brien committed suicide. They were warranted in finding, and must be deemed to have found, that his domestic trouble had been completely remedied; that his owing. $1,250 on his automobile and having been sued for $110 indicated no serious financial difficulties; that he was of a cheerful disposition and that there was nothing in his character, condition or surroundings to suggest a desire to end his life. One witness testified that in the course of a quarrel with his wife about a week before his death he had threatened to kill himself, but as the jury may not have given credence to
The weight to be given to the opinion evidence as to how far the revolver was from the body when the shot was fired was a question for the jury. They may have been satisfied that the distance was not less than two feet. It is manifestly unlikely that if O’Brien intended to kill himself he would hold the revolver so far away. On the other hand the fact that the bullet passed straight through the body indicates a position of the revolver that does not readily lend itself to the .theory of its accidental discharge by being carelessly'handled or dropped, or by its hanging fire. The weighing of these conflicting probabilities however was a function of the jury. In order to reach a verdict for the plaintiff it whs not necessary for them to find that the death occurred in any particular manner, but merely that they should fail to be persuaded by a preponderance of the evidence, that it was the result of a suicidal intent. The case has something in common with earlier ones in which juries have found against the theory of suicide where the circumstances were capable of interpretation tending forcibly to the contrary. (Heath v. Life Association, 89 Kan. 634, 132 Pac. 147; McCoy v. Insurance Co., 104 Kan. 571, 179 Pac. 969.) The circumstances presented are quite similar to those of Stephenson v. Bankers Life Assn., 108 la. 637. There a verdict implying that a death was accidental was upheld against the contention that the evidence did not support it. In the opinion it was said:
“There were very slight powder marks, if any, about the wound, and there was no laceration. It was a clear cut. . . . It is evident that the revolver was not held against the head, as is usual in cases of suicide.
. . . While some of the circumstances point towards self-destruction, yet we cannot say that the evidence is sufficient to overcome the presumption of accident. The most that can be said is that they point as strongly in one direction as the other; but this, as we have seen, is not sufficient, for the reason that plaintiff’s case is aided by a presumption based upon the love of life found in every individual, which is ordinarily sufficient to induce its preservation.” (pp. 640, 641.)
“A communication between client and attorney is not confidential when made in the presence of the other party. Where it is made in the presence of all the parties to the controversy, evidence of the communication is competent between such parties, and the attorney may be required, in an action between them, to testify thereto.” (4 Jones Commentaries on Evidence, §-751b, p. 507.)
There is no room for presuming that statements made to his attorney by one party to a divorce action in the presence of the other in the course of a conference looking to an adjustment of the controversy are not intended to be confidential. That situation is peculiarly one in which public policy favors encourag
The judgment is affirmed.