149 Iowa 562 | 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 deceased was a lawyer. He had an office con
He' met his -death in the smaller room of 'this office from a gunshot wound in the head, inflicted about 7 o’clock on Sunday night, January 20, 1907. He left his home, according to his custom, about 3 o’clock in the afternoon; arrived at his office within half an hour. Sometime later another person was heard to go up the stairs and into Scott’s office. The leaving of the office by such person was not observed by anyone, so far as disclosed by this record. There was an elevator in general use in the Hofmann Block, but its operation on Sunday was confined to certain specific hours. On the day in question, it was operated during such hours by the janitor, one Borgstedt. The elevator was not in operation between the hours of 6 and 7 p. m. Borgstedt left the building about 6:30 and returned about 7. Almost immediately upon his return he was called to the elevator by the ringing of the elevator bell. He answered the call by going up to the fourth floor, where he found one Voyet, who was a tenant of one of the offices on such floor. Voyet informed him that
The theory of the defendant is that this revólver was probably obtained by Scott from some of his clients, either as pay or security for services rendered; that the location of 'the wound was such that it could not have been the result of accident; that he was alone in his office and could not therefore have been the victim of homicide. As a motive for the suicide, it is urged that in the latter part of November and the early part of December, for a period.
Upon a separarte reading of the entire record, we have all reached the conclusion that the evidence is far from conclusive in support of the defendant’s theory. The only evidence in support of tlie theory that Scott was alone in his office is the fact that nobody was seen by Borgstedt to leave the building after he returned at 1 p. m., and nobody was found in tlie office at the time of the discovery of the body. But, on the other hand, it is undisputed that somebody did go into his office about 4 o’clock, and it is not known when such person left. The finding of the revolver, with which the killing was presumably done, near the body of the deceased is not of conclusive significance; and this is especially so when there is a failure to trace the revolver to the possession of the deceased during his lifetime. It is well known that it is a common ruse of the assassin to place the weapon of death in or near the hand of the victim, for the very purpose of creating an impression of suicide. The unknown revolver, the open door, the clean wound, and the time and. place, were all consistent with the theory of homicide. The night was cold and dark and the hour was one when the biiilding was apparently deserted. Neither the janitor nor elevator boy was required at his post. The time required for an escaping person to pass from the office, down the stairway, and out of doors would be about one-half minute. The alleged motive lends very little aid to defendant’s theory. The alleged advice of the physician, three years before, was resented by Scott and contradicted by another physician, whose advice he sought. His recovery from the typhoid .fever was practically complete, so that he frequently
An important circumstance in the. case was the fact that no cauterization or powder burn appeared upon the wound. Generally speaking, a self-inflicted gunshot wound is said to be usually characterized by powder bums and cauterization about the opening of the wound. This condition will usually result when the muzzle of the weapon is held at a distance of one or two feet or less from the point of entry. As the distance increases, the chances for such a condition become less. It is urged by the defendant, however, that where the muzzle of a revolver is held close enough against the point of entry to prevent comnrunication with the outside atmosphere, no powder burns or cauterization will appear on the outside of the wound, aud testimony was introduced to that effect. Such testimony, how
It is strenuously urged by the appellant that the case is controlled by some of our former decisions, and particular stress is laid upon Inghram v. National Union, 103 Iowa, 395; Carnes v. Association, 106 Iowa, 281; Beverly v. Maccabees, 115 Iowa, 524, and Gavin v. Life Ins. Co., 149 Iowa, 152. As we have heretofore said, the adjudicated cases furnish little definite aid in passing upon the sufficiency of evidence, because seldom can two cases be found which are alike in their circumstances. It may fairly be said, perhaps, that the evidence in the case at bar is quite as conclusive as that in the cases of Inghram and Gavin, supra, so far as excluding the theory of accident is concerned. The difference between the case at bar and the two cited cases is very marked, however, when we come to a consideration of the evidence excluding the theory of homicide. In the two cited cases, the circumstances were so conclusive against the possibility of homicide that it was not even urged .as a possible theory in the case. Upon that feature of the case, then, the cited cases furnish us no aid whatever. The Beverly case was one wherein the jury was waived in the court below and the finding of the trial court was in favor of the defendant. It was held, on appeal, that such finding had sufficient support in the evidence. In the Carnes case an accident policy was involved, and the burden was upon the plaintiff to prove that death resulted from accident, and not from suicide. In the case at bar, the burden is upon the defend
The foregoing comprise the most important debatable questions in the case. Many other specific errors are assigned and argued. We can not devote the time to a detailed discussion of all of them. Sufficient to say that we have given them all careful consideration and find none of them well taken.
The judgment below must therefore be affirmed.
Dissenting Opinion
(dissenting). — From the argument and conclusions in the sixth and eighth paragraphs of the opinion I must dissent. The reason for this dissent from the eighth division of 'the opinion will be set forth in a dissent which I shall file to a companion case decided at the- present term, entitled Scott v. The Homesteaders, 149 Iowa, 541.
My dissent from the sixth paragraph of the opinion in this case is based upon two fundamental propositions: (1) The majority hold that because a witness at the request of counsel tells what he did with a piece of independent testimony, which - may or may not be admissible as substantive testimony, such as a pork rind and a hog’s head, that when this piece of real testimony is offered as substantive and independent evidence, to speak in and of itself, objection thereto is not good, because of the use of and explanation made by the witness of these items of
Again, the doctor who testified regarding his experiments was asked as to the distance at which the revolver must have been held from Scott’s head at the time the wound was inflicted upon him. To this objection was made, but it was overruled, and the witness was permitted to answer. If this was not invading the province of the jury, then I am at a loss to know how a question could be fiamed which would do so. A jury in such cases is
I think these matters, with the erroneous instructions given by the tidal court, as pointed out in my dissent in the Homesteaders case, call for a reversal of the judgment.