149 Iowa 541 | Iowa | 1910
Lead Opinion
The plaintiff is the widow of B. W. Scott, and is the beneficiary named in a certificate of membership and insurance held by the said Scott in his lifetime in the defendant as a fraternal beneficiary association. One of the provisions of such certificate is that it shall be void if the holder thereof die by his own hand, except by accident. The certificate was issued on January 9, 1906. On January 20, 1907, Scott died from a gunshot wound. The immediate circumstances of his death are involved in much uncertainty. Circumstantial evidence alone is relied on by both parties; the burden of proof being upon the defendant to prove its defense of an alleged suicide.
This is a companion case to Mary E. Scott v. Sovereign Camp of the Woodmen of the World, 149 Iowa, 562. The
I. In the rebuttal testimony on behalf of plaintiff, the following record is presented to us by appellant’s abstract :
i. Expert evidence: experiments: admissibility. Q. There has been some theorizing by eminent physicians about the effect of holding a pistol in contact with the skin and discharging it, and some gentlemen, chiefly Mr. Ileindel, have advanced the theory that if held in contact, it would leave no burning or mark, and will aslc- you if, at my request, you have made an experiment with a piece of hog meat placed upon a cabbage head? A. Yes, I have made some tests. This head of cabbage was placed against the wall, and the pistol, a 22-caliber, was pressed hard in on the head of the cabbage; pressed against the skin on the piece of bacon. By Mr. Ileindel: We object to this testimony as incompetent and immaterial, and because it appears from what has been said by witness the pistol is a different caliber, and the witness acknowledges this test as made in a different way in which Mr. Scott’s was fired. Overruled. Excepted. A. Well, this pistol, as I said, was fired with the muzzle pressed tight against the piece of bacon; here is the powder marks in burning the powder; there was a good deal more of it than there is now; some of it has been rubbed off. Now the hole went through this head of cabbage, pressed right up against the bacon, and the bacon is black where the bullet entered, and a little black’on the cabbage, showing that combustion came out on this side, and not on this.
An excerpt from the testimony of Dr. Bannister, as it appears in the appellant’s abstract, will show the record in this respect:
Q. Have you, doctor, in the course of your practice, made some experiments with firing a pistol at an object at various distances? A. Yes, sir. • Q. I will ask you, from Avhat you have observed in a case known to be suicide and from your experience of bullet wounds and from your experience, what would be the condition as to the presence of or absence of powder marks, burns, and smoke upon the skin surface at the point of entrance of the bullet, when the pistol is held in contact with the object at which it is shot ? A. My own experience and observation from these experiences, from what I have seen and also from what I liaA^e read, if a pistol is held in close contact, there are no powder marks around, but it often goes straight through the hole; no scattering around about it. Q. I would like to have you include in your answer whether or not, any case where the muzzle of the gun is held in close contact, there are burns or smoke marks, as distinguished from powder marks. A. The edge of the wound would be burned and powder marks that are blown into the bone that is to be distinguished from burning the edge of the wound, and powder marks would not be present. Q. When you say burned — the edges Avould be burned? I Avill ask yon if you mean there that whether it simply will extend out over the surface, or whether it is simply the edge of the skin? A. The edge of the skin. Q. Does it extend over the area of the wound? A. No, sir. Q. Would it be indistinguishable to the ordinary observer ? A. No, sir. Q. What has been your observation and ex-*547 perienee as to the presence or absence of powder burn or smoke mark surrounding the wound by the bullet in the case where the gun or pistol has been held in the vicinity of two or three feet? A. If it would be at any distance further than three feet, powder marks are very liable to be absent. . . . Cross examination: Q. Doctor, your theory is that if the muzzle' of the revolver is pressed right against the surface, in that case, then, there will be no indication of powder marks around the wound. None whatever? A. Yes, sir; that is right. Q. You say there would be some indication of some burning around the wound? A. Some burning, yes; but at the edge of the wound. If the revolver were put against the surface, not solid, but so as to leave a little room between the surface and the edge of the revolver, there would probably be a burning and powder marks would escape out there. It would make some difference, also, as to whether or not the surface was solid or whether it was a soft surface. In other words, a soft surface, with the revolver pressed against it, would compress it, so that there would be no chance for smoke or powder marks to escape around the muzzle of the revolver; but, if the surface were hard, there would be a chance for powder marks to escape around it; in other words, the gun pressed — you couldn’t press the muzzle of the revolver so hard against, or so close against, the hard surface as you could against the soft surface — • so as to prevent that condition. Witness excused.
If the defendant had confined its own expert testimony on this subject strictly to results to be obtained from the use of a 41-caliber revolver, > it may be that it could have confined the plaintiff within the same limits. But it opened the door wider than that and, in a sense, challenged the plaintiff to experiment with any revolver, regardless of caliber. The testimony complained of was rsponsive to that offered by the defendant and tended to negative the same. Whatever the abstract rule might be in a proper case, the defendant itself rendered admissible the evidence now complained of so far as the caliber of
that such objection was fairly made to the trial court. We may say, also, that identity of material in such a case would be a practical impossibility. It does not appear from the record what material was used by defendant’s witness, Dr. Bannister, in his experiments, but we may well assume that it was not a human head. In Thrawley v. State, 153 Ind. 375 (55 N. E. 95), evidence of experiments with a blotting pad was held admissible. In the case before us, the witness brought into court the material which he had used and this was before the trial court at the time the ruling as to the admissibility of the evidence was made. A large latitude of discretion must be allowed to the trial court in ruling upon the admissibility of this class of evidence. As was said in State v. Nowells, 135 Iowa, 60: “It is also generally held that the admission or exclusion of testimony of this nature is largely a matter of discretion, and unless it appears that such discretion has been abused to the prejudice of the complaining party, the ruling will not be disturbed on appeal.”
It is to be noted, also, that many of the utterances quoted in appellant’s argument in support of its contention were made by appellate tribunals in support of the trial court, where it had excluded proffered testimony.' We are satisfied that sufficient similarity of condition was shown to warrant the exercise of the court’s discretion in favor of the admissibility of ’the testimony.
(3) Under the plea the only issue for your determination is whether or not B. W. Scott died from his own wilful act, or in other words, committed suicide. If he committed suicide your verdict should be for the defendant. If he did not commit suicide, your verdict should be in favor of the plaintiff for the full amount claimed, to wit, $810.20.
(4) The burden of proof is upon the defendant to prove by the greater weight or preponderance of the evidence, that he did commit suicide. Unless it has thus proven said fact, your verdict will be for the plaintiff, and if it has thus proven said fact, your verdict will be for the defendant.
(5) The law presumes that men love their lives and will not commit suicide, but this presumption is a rebut-table one, and if the circumstances are sufficient to indicate to you that Mr. Scott did commit suicide, you should so find.
(6) In order to find that Mr. Scott did commit suicide from the circumstances in evidence, they should all point clearly to the fact of suicide and be inconsistent with any other reasonable hypothesis.
(7) In order to warrant a verdict for the plaintiff, it is not necessary that you must be satisfied that the deceased was either murdered or killed by accident. The plaintiff is not required to prove by whom or in what manner the shot was fired. The burden is upon the defendant to satisfy you, by the preponderance of the evidence, that the pistol shot wound was self-inflicted, and if, after considering all of the evidence in the case, you are unable to say by whom or how said wound was inflicted, then your verdict should be for the plaintiff.
(9) As stated above, the sole question for your deter*550 mination is whether or not Mr. Scott committed suicide, and as this is the decisive issue in the case, your verdict will be for the defendant, if you find that he did commit suicide, and for the plaintiff, if you fail to so find.
The general complaint as to instructions 6 and 1 is that the court laid upon the defendant too great a burden of proof. The criticism is directed to the use of the word “clearly” in the sixth instruction, and to the use of the word “satisfy” in the seventh instruction. The argument is that by instruction 6 the defendant was required to prove the fact of suicide “clearly,” instead' of by preponderance of the evidence. We are not disposed to commend the use of the word “clearly” in such a connection. We are constrained to hold, nevertheless, that its use is not fairly subject to the árgument against it. This instruction does not require the fact of suicide to be proved “clearly,” as contended by appellant. This instruction only undertakes to set forth the rule as to circumstantial evidence. Defendant’s proof rested wholly in circumstances. It is not claimed to be improper for the trial court to say to the jury that in order to find the fact from the circumstances such circumstanc.es must be inconsistent with any other reasonable hypothesis. To say, also, that these circumstances “should all point clearly to the fact of suicide” is putting the case no stronger than to say that they must be “inconsistent with any other reasonable hypothesis.” The instruction did not require the fact of suicide to be clearly proved, but it did require that all the circumstances relied on should clearly point that way. We think, therefore, that the instruction in this respect was not technically erroneous, although its form was such that it might have been misunderstood. Considering it, however, in connection with instruction No. 4, which stated the rule as to the burden of proof and the preponderance of evidence, we think there is no fair ground of complaint.
Some complaint is made that the form of the instruction was confused in that the jury was instructed: “If, after considering all of the evidence in the case, you are unable to say by whom or how said wound was inflicted, then your verdict should be for the plaintiff.” It is said that this expression “by whom or how” invited the jury into the field of mere speculation, in that the jurors might well say within themselves, We do not know “how or by whom,” even though the circumstances indicate suicide; or that, at least, they might say that they did not know just how he did it, even though they found that Scott did in some manner intentionally inflict the wound upon himself.
We think counsel put an undue construction upon the language of the court at this point. The words “by whom” and “how” are not used conjunctively, but disjunctively, and somewhat synonymously. If a special interrogatory had been submitted .to the jury, asking “by whom or how” said wound was inflicted, an appropriate answer thereto by the jury would disclose whether the finding was in favor of suicide or otherwise. If yea, a fairly appropriate answer would be, thait the wound was self-inflicted. If from the form of the interrogatory, the jury might deem it necessary to incorporate any further finding in their
Inasmuch as a dissenting opinion is filed herewith, a few further observations as to points discussed therein may not be inappropriate. In paragraph 1 of this opinion, we kave copied in full tke sole objection appearing in tke record wkick furnishes any basis for tke discussion in paragraph 1 of tke dissenting opinion. We kave also set forth tkat part of tke testimony of Dr. Bannister, a witness for appellant, wkick sets forth tke tkeory advanced by appellant as explaining tke absence of powder marks on Scott’s wound. This tkeory was based upon Dr. Bannister’s expert opinion, and stick expert opinion was based upon alleged observations and previous experiments made by Dr. Bannister. Tke condition of a successful experiment, as described by this witness, was tkat tke pistol must
It is said that instruction six states the rule applicable to criminal cases, and not the rule applicable to civil cases. This instruction only purports to deal with the rule. governing circumstantial evidence. If there is any difference in the statement of this rule, when applied to a civil case, from its statement, when applied in a criminal case, such
As to the first point made against the seventh instruction, there is much force to the reasoning of the dissent. But the question has been heretofore considered by this court in the cases already cited and a contrary conclusion was reached. If the present dissent had been interposed then, it might have been effective. But the question was .fully considered and the conclusion reached was concurred in by the entire count. The point is therefore foreclosed, unless we overrule the cited cases. The expression “by whom or how” contained in the seventh instruction appears in the dissenting opinion as “by whom and how.”
The dissenting opinion puts a construction upon the majority opinion at one point to which special attention should be directed, lest the majority opinion be thereby misunderstood or misconstrued. At this point the majority opinion is construed to say “that even if these instructions be conceded to be erroneous, there was no error, because in other instructions the true rule is given.” Inapt has been the language used in the majority opinion, if it will fairly bear this construction. This disclaimer is perhaps' sufficient to direct attention to the language of the majority opinion itself at this point, and to negative an implied assent to the construction thus placed upon it.
It is the conclusion of the majority that no proper ground of reversal appears in the record, and -the judgment entered below is therefore affirmed.
Dissenting Opinion
(dissenting). — My dissent in this case must he even more emphatic than in the case of Scott v. Sovereign Camp, referred to in the majority opinion. In this ease, the experiments were conducted with a piece of
On the proposition here involved, I quote the following from State v. Justus, 11 Or. 178 (8 Pac. 337, 50 Am. Rep. 470). “When it is considered how much other marked characteristics in conjunction with powder burns aid in determining the fact of near wounds — what seemingly immaterial circumstances — even the kind or compound of the wadding used, may affect the appearance of gunshot wounds, how fundamentally different is the human body in nature and texture from the substance upon which the experiments were made; and when it is considered how important it is that experiments should be based on conditions and circumstances as nearly as possible like the matter they are intended to illustrate, to avoid the liability to misconception, or error from some supposed agreement
That experiments should be made with a gun of the same make or caliber and that a similar charge or cartridge should be used, see, as exactly in point, Morton v. State (Tex. Cr. R.) 71 S. W. 280, which is closely in point. Clark v. State, 38 Tex. Cr. App. 30 (40 S. W. 992); State v. Nagle, 25 R. I. 105 (54 Atl. 1063, 105 Am. St. Rep. 864); State v. Asbel, 57 Kan. 398 (46 Pac. 770); People v. Clark, 84 Cal. 573 (24 Pac. 313); Beckett v. N. W. Masonic Aid Ass’n, 67 Minn. 298 (69 N. W. 923); and cases cited in 12 Am. & Eng. Ency. of Law (2d Ed.) p. 407.
I think the majority are in error in <holding, in the first division of this opinion, that the experiments were under similar conditions to the main fact which was the subject of inquiry. I do not think that the examination of Dr. Bannister by the defendant opened the door to the testimony offered by plaintiff, as suggested by the majority. In the first place, plaintiff did not object to the testimony of Dr. Bannister, thus admitting that his experiments were made under similar conditions, and there is absolutely nothing in his testimony showing that they were not so made. There is absolutely nothing to show that he did not use the same kind of revolver and nothing to show that he did not use the human head 'of one deceased, as he might well have done. A careful reading of his testimony clearly shows that the door was not opened to plaintiff to show the results of incompetent experiments. If there is anything to show that he used a different sized revolver from that with which the wound was inflicted upon the deceased, or that he used anything in his experiments similar to a piece of hog meat and a cabbage head, I have not found it. Unless it affirmatively appears that he did, plaintiff was not justified
II. I specially dissent from the holding that instructions six and seven as given by the trial court were not erroneous. Instruction No. 6, to my mind, does more than state the rule as to circumstantial evidence. It gives the rule applicable to criminal cases, and not the one which should be applied to civil ones. In civil cases, although the evidence be circumstantial, nothing more than a preponderance is required; while in criminal ones the testimony must be such as to remove all reasonable doubt. The court, in effect, instructed that it was not enough that the circumstances be inconsistent with some other reasonable hypothesis; but that they should all point clearly to the fact of suicide. If this does not cast more of a burden upon defendant than he was required to bear, then I am mistaken as to the effect of the English language. The court, in its instruction, itself distinguished between the fact that the circumstances should be inconsistent with any other reasonable hypothesis of suicide by saying in addition, that they must all point clearly to the very fact of suicide. In this I think there was error. This error was intensified in the seventh instruction, wherein the jury was instructed that the defendant must satisfy them, by a preponderance of the evidence, that the wound was self-inflicted. This brings the case clearly within the rules of our former cases. See Rosenbaum v. Levitt, 109 Iowa, 292, and cases therein cited, and various cases since that time, which will readily be found in the Iowa Citator. The trial court emphasized and intensified this error by immediately saying that “if, after consulting all the evidence, you are unable to say by whom or how said wound was inflicted, then your verdict should be for the plaintiff.” The thought of the court in giving these two instructions is thus clearly shown. The circumstances shown must
My thought in this connection is so well expressed in Stratton v. Ill. Cent. R. R., 95 Ill. 25, that I here quote therefrom the following: “Juries are required in civil cases to decide facts upon the weight or preponderance of the evidence, and this, too, where the proof does not show the fact in question to the satisfaction of the jury. In such cases, the jury may find any given fact in a given way, upon their judgment as to the weight or preponderance of the evidence, though they may have reasonable doubts as to the real truth. The law in such cases does not demand that every material allegation be established to the satisfaction of the jury, and it was error to tell the jury so in the instruction. The instruction referred to proof that plaintiff was not guilty of contributory negligence.” See, also, Harnish v. Hicks, 71 Ill. App. 551; Mitchell v. Hindman, 150 Ill. 538 (37 N. E. 916). As one judge expressed it, the burden of proof means no
We have followed these rules in Bryan v. Railroad, 63 Iowa, 464, from which I quote the following: “In civil cases, a fact may be found in accordance with the preponderance of the evidence, and yet the mind may he left in doubt as to the very truth” (The italics are mine.) “The triers of an issue in such cases should, when doubts arise, find for the side whereon the doubts have less weight.”
To my mind, the majority do not see the vital error in these instructions; certainly they have not answered the objections which I am now urging against them. One suggestion is made in the opinion I desire especially to note before closing, to the end that I may not be bound by the conclusion announced. My construction of the opinion is that even if these instructions be conceded to be erroneous, there was no error, because in other instructions the true rule is given. The difficulty with this proposition is that we can not tell which instructions the jury followed. If conflicting, as they must be if there is any point to the suggestion made by the majority, then, under numerous and familiar decisions heretofore made by this court which I need not cite, the judgment should be reversed.
I cannot close without referring specifically to the case of Mitchell v. Hindman, supra, wherein an instruction to the effect that one must prove to the satisfaction of the jury, by a clear preponderance of 'the testimony, was held to be erroneous. One other point regarding an analogy made by the majority in referring to special interrogatories. Suppose that plaintiff had submitted this special interrogatory to a jury, “By whom and how was the wound inflicted upon the deceased?” Would the trial court have been justified in denying it? Undoubtedly it would, for the reason that it called for testimony, rather than an ultimate fact. But suppose such had been submitted and
I have very grave doubts about the admissibility of the threats said to have been made by the colored man against the defendant. In view of these doubts, I think the instructions should have carefully guarded the rights of the defendant, and not required a clear showing — a satisfaction of mind — that deceased committed suicide. It certainly was not required of them that they should be able to point out the very man who did the shooting, or the manner in which it was done, before they could find for defendant.
This case, to my mind, is clearly one for reversal.