163 Mo. App. 235 | Mo. Ct. App. | 1912
This suit is on a death benefit certificate issued by a fraternal beneficiary association incorporated in Nebraska and licensed -to do business in this state. The certificate contains a stipulation against suicide and the sole issue submitted to the jury was whether or not the death of the holder was self-inflicted with suicidal intent. The jury decided that issue in favor of plaintiff and defendant, appeal- ‘ ing from the judgment rendered on that verdict, asks us to hold as a matter of law that the defense of suicide indisputably was proved.
Plaintiff, the beneficiary named in the certificate, is the widow of Philip S. Richey who died at his home in Nodaway county on the morning of January 25, 1909. In the two months preceding his death Richey, who was forty-two years old and in good health, increased his life insurance from $1000 to $7000'. A policy of $2000 was issued to him by an old ' line company and the remainder of the increase consisted of certificates issued by fraternal beneficiary associations, among them the certificate in question.
Only one of the boys at the grindstone went to the assistance of Richey in response to his cry and, as stated, he was in the barn only a moment. After giving the alarm he went home and did not return until after neighbors had collected and the body had been removed to the house. He testified: “I went home after ten o’clock that day. I didn’t see or hear a note read that day that I recollect of. I was not present at any time anything of that kind occurred. When I came back down to the Richey’s after I had gone home I was just around there with the boys, Elmer Richey and Luther Belcher. My brother Jesse didn’t come back. I was around the woodpile and didn’t go in the house a great deal. The older people —neighbors—• were in the house. When I came from the barn after having found Mr. Richey, I told Mrs. Richey. She and the children started toward the barn, running, I believe. Elmer and the rest of the children were with her. Elmer is older than I am, I think. None of the boys or girls in the family were older than he was. All of them started out toward the barn. I don’t know who was the next person who got to the Richey place after I was there. I saw Dr. Martin or Mr. Croy or Mr. Taylor, or some other people on the road after I got home.”
Mrs. Croy, a neighbor, introduced by defendant, testified that she and her husband arrived at the Richey home before the body had been removed from the barn to the house. We quote from her testimony:
“You may tell the court and jury whether or not Mrs. Richey told you after you went down there, anything about having found a note pinned on the body —on the coat of Mr. Richey? . . . She told me about a note and showed it to me at that time. I had
By the Court: “Hold on a minute. Told you to put it away and take care of it? A. Yes, sir. She told me to take it and care for it.”
By the Court: “Well, did you? A. Yes, sir.”
By the Court: “Have you got it? A. No, sir.”
By the Court: “Where is it? A. I know nothing about it. She told me, at the time, to put it up and care for it, and I did, and put it up in the clock; and afterwards it was taken out and given to her, and I know nothing about it. . . .”
“Q. Well, would you remember the substance of the note, if you would hear it? A. Yes, sir.
“Q. I will ask you then, if it read something like this — ”
By the Court: “Oh, no, I can’t allow that to go in.”
By the Court: “No. You can let her read that and see. . .
“Q. Now, Mrs. Croy, would you say that what is contained therein is, in substance, what was read to you or that you read? A. Yes, sir. . . .
“Did she tell you where she got it? A. I gave it to her myself.
“Q. I know. But did she tell you where it came from — where they found it? A. No, sir; I don’t think she knew.
“Q. Don’t think she knew? Did she tell you, « in that conversation, who the note was f>om? A'. Yes, sir; I think so.
“Q. Who? A. Her husband.
“Q. After telling you that, she told you to keep it and put it away for her? A. Yes, sir.
“Q. Did she tell you when or where it had been found? A. No, sir.
“Q. Was there any perforations in it? A. Yes, sir.
“Q. How many? A. Two, that I remember.
“Q. About how large? A. Well, the size of a pin.
“Q. And in handling it, do you know whether or not there was any substance on it? If so, what? A. Carbolic acid.
“Q. How do you know that, Mrs. Croy? A. Because I got some of it on my hand and some on my face. . . .
“Q. Now, Mrs. Croy, in your own language, you state as nearly the contents of that note as you can— what it said. A. Well, I don’t know as I can repeat it exactly.
“Q. To whom was it addressed? A. To hib wife.
“Q. Pie said what — I didn’t get it — what was the best? A. Which?
“ Q’. Yon said something about what he was doing he thought was for the best? A. I don’t know. He said he thought what he was doing was for the best. I suppose dying was for the best, he thought.”
By the Court: “Don’t make any deductions. State what was in it.”
“Q. What, if anything, was said about the children? A. Pie said to raise his children right.” Cross-examination.
“A. I was not personally acquainted with the handwriting of Mr. Richey.
“Q. And of your own personal knowledge, you don’t know that he wrote that note at all? A. Of course I could not prove that he did.
“Q. Of your own personal knowledge? A. No, sir. There was no date on the note and no name was signed to it at all.”
Dr. Todd, the coroner, testified that he went to the Richey farm in the afternoon and examined the body and that he found the cause of the death to be so apparent that he concluded not to hold a jury inquest. About the note he testified:
“Q. Did you see any note there, at the time? A. Yes, sir.
“Q. Who showed it to you? A. My memory is that Mrs. Richey handed me the note when I went back into the room.
“Q. Did you read it? A. Yes, sir. The best I could. ’ ’
By"the Court: “Well, what, if'anything, did she say as to where it came from?”
“A. That it was found on the body or in a pocket on the body. And I took it as an evidence of — •”
By the Court: “Never mind what you took it for. Be careful not to state your deductions, Doctor.”
“Q. What was it that you say that she stated to you that it was found where? A. On the body or in his pocket. I wouldn’t say which.
“Q1. In vour opinion, whose handwriting was it in? A. That was Mr. Richey’s — ”
By the Court: “Hold on. Made up from the appearance of the writing? A. Yes, sir.”
“Q. What do you say as to that? A. I say that it was his writing.
“Q. Will you please state to the court and jury what the substance of the note — do you remember its contents in detail? A. I think not. I remember— Q. Can you give in substance the contents of it? A. I think so. Q. Now, do that, in your own language. A. The letter was addressed to — as I remember — to ‘My Dear Wife: You have been a good wife,’ is my memory of it. ‘Take good care of the children. I think this is best.’ Or something like that. Not signed.”
Marion Ulmer, called as a witness by plaintiff, testified on cross-examination:
“Q. Now, can’t you tell the jury what, if anything, she (plaintiff) said about the cause of her husband’s death there, please? A. Well, about all she said to me, she said there was a note that he had left. She showed me a note that—
“Q. Uh huh. Did you read it, Marion? A. No, I tried to read it. I just read a word or two of it.
“Q. Did it say, in that note, that ‘I am sorry to leave you. Take good care of the children. You have been a good wife. I think it is best to leave this world —to do this and to leave the world,’ in substance? A. That is the substance of it, Mr. Blagg. I couldn’t tell-”
Mrs. Dora Smith, another witness introduced by plaintiff, testified on cross-examination:
“Q. Were you there at the — when your boy Walter came up you went down immediately, Mrs. Smith ? A., Yes, sir.
“Q. During any time that you were there, did you see or read or hear read a note that had been found about there? A. Yes, sir.
“Q. Can you tell the court — I will ask you if you remember, in substance, what that contained? • A. No, I can’t exactly.
“Q. Was it addressed to his wife? A. I think it probably was.
“Q. Did it say, ‘Dear Wife’? A. I can’t say just how it went.
“ Q. I know. But, now, listen: It was addressed to her? A. I think so.
“Q. And did it say that she had been a good woman? A. I think so.
“Q. How is that? A. I think so.
“Q. ‘Take good care of the children’? A. Yes, sir.
“Q;. ‘And I think it is best to leave this world and to do this’? A. Well, I can’t say to all of that.
“Q. That is substantially what it contained? A. I can’t say what it was.
“Q. ‘I am sorry to leave you. You have been a good wife. I think it is for the best. Take good care of the children.’ That is substantially what it contained, was it not? A. Yes, sir.
££Q. You heard it read more than once? A. No, sir; I don’t think I did.
££Q. You had it in your hands and know about its contents? A. Yes, sir.”
Moxt Smith and Dr. Martin also testified that the note was exhibited to them and others with the statement that it had been found on the body of the deceased.
Some of the witnesses who were at the farm shortly after the death of Eichey said they did not see the note or hear about it, but no attempt was made by plaintiff to deny that a note of the kind described by the witnesses from whose testimony we have quoted was found on the body of her husband, was in his handwriting, and was shown by her to the coroner and to a number of her friends. While on the stand plaintiff did not deny the admissions concerning the note the witnesses say she made and the only testimony elicited from her on the subject is the following:
££Q. You may state, Mrs. Eichey, whether or not you handed Dr. Todd the note referred to by him in suit? A. No, sir. Not that I recollect of. I don’t recollect of handing the note to anybody.”
Instead of being a denial of the fact that her husband wrote and left on his person a farewell note, the answer of plaintiff, in effect, admits the existence of such fact and since a number of witnesses, of whose credibility and sincerity there can be no question, testified to the existence of the note and to the admissions of plaintiff that it was in the handwriting of the deceased and was fonnd on his person and since such testimony was given, by witnesses introduced by plaintiff as well as by her adversary and is uncontradicted by any evidence and, in effect, admitted by plaintiff, we must regard the facts appearing in their testimony relating to the note as proved. If proof of
But where, as here, the witnesses of the defendant are supported by the testimony of witnesses introduced by the plaintiff and whose credibility is vouched for by her, there can be no ground on which the rule just quoted may rest, and the uncontradicted facts common to the evidence of both parties should be regarded as proved and as offering no debatable issue of fact for the jury to solve.
Counsel for plaintiff, in their brief and argument, avoid reference to the note and rest their defense to the charge of suicide on the ground that the burden is on defendant to establish the fact of suicide and since defendant has the affirmative, necessarily the issue is one of fact that must go to the jury. It is true that in cases such as this, suicide is an affirmative defense and, generally, it is a defense that should be submitted to the jury as an issue of fact, but it is not true that an affirmative defense cannot be so clearly and indisputably established that its existence should not be accepted by the court as proved in law. Where all the evidence in a case is of such character that it affords no room for reasonable controversy about an ultimate fact, there can be no issue and, therefore, nothing concerning such fact for the triers of fact to determine. In each of the cases cited by plaintiff there was room in the evidence for a reasonable
But there is nothing in those cases, nor in any of the authorities we have consulted, that militates against the conclusion that the defense of suicide may be proved in law. The presumption against suicide is very strong — strong as the universal instinct for life — but it may be overcome by proof just as the instinct for life, in individual instances, may be overmastered by a desire for death, and we perceive no reason in law or logic for saying that the fact of suicide cannot be established in law. The true rule thus is tersely stated by the Supreme Court of Wisconsin in Agen v. Insurance Co., 80 N. W. 1020:
“Where the reasonable probabilities from the evidence all point to suicide as the cause of death, so as to establish it, in the light of reason and common sense, with such certainty as to leave no room for reasonable controversy on the subject, a jury.should not be permitted to find to the contrary and have such finding stand as a verity in the case but the question should be decided by the trial court as one of law. ’ ’
Applying this rule to the conceded facts of the present case we must hold the trial court erred in not peremptorily instructing the jury to return a verdict for defendant.
There can be no reasonable doubt that plaintiff’s husband drank carbolic acid with the intention of destroying his life. The suggestion that his act might have been the result of mistake will not bear analysis and rests entirely on conjecture of the most unsubstantial and fanciful nature. The note pinned by the unfortunate man on his coat after he entered the barn disclosed his knowledge of the contents of the vial and his purpose to end his life. Plaintiff’s testimony con