2 Ind. App. 155 | Ind. Ct. App. | 1894
This was an action by the appellee, Matilda Nitterhouse, against the appellant on a policy of insurance for two thousand dollars issued on the life of the appellee’s,late husband, George Washington Nitterhouse.
It is provided in the policy, a copy of which is filed with the complaint, that it is issued and accepted upon certain express agreements which are declared to be conditions precedent to the contract.
One of the provisions of the second condition is that if the assured, George Washington Nitterhouse, “shall * * * ¿¡je by suicide, whether the act be voluntary or involuntary, felonious or otherwise, or whether the insured be sane or insane at the time of the act, * * * then this policy shall be null, void and of no effect, except in the cases provided for by the sixth condition of this policy.”
In the sixth condition of said policy it is provided that if the insured “shall die by suicide * * *' during the continuance of this policy, then the full net value of this policy, per American Experience Table of Mortality and 4>í per cent, interest and no more shall be paid.”
The appellant filed an answer in four paragraphs.
The first paragraph of the answer was a general denial.
In the second, third and fourth paragraphs of answer, all of which purported to be but partial answers to the complaint, the appellant averred, in different forms, that the insured came to his death by .suicide and prayed that
Appellee filed a reply and the issues thus formed were brought to trial before a jury, beginning March 8, 1893.
At the conclusion of the evidence, by agreement of the parties made in open court, the cause was withdrawn from the consideration of the-jury and submitted to the court for trial and final determination in the circuit -court upon the evidence then in the record.
On the 11th of March, 1893, the court, after having heard argument of counsel, took the cause under advisement, and, nearly a year thereafter, to wit, on the 2d of February, 1894, it made a special finding of facts, at the request of the appellant, and stated its conclusion of law thereon.
The finding in reference to the manner in which the insured came to his death is as follows:
“Third. The court further finds that at the time of his death said George W. Mtterhouse was 45 years of age, and, by his marriage with the plaintiff, had four children, who survived him, to wit, two daughters aged 17 and 15 years, and two sons aged 12 and 7 years; that on the 27th day of August, 1891, he was injured from a fall, in the left side near the seventh rib, and on the seventh or eighth day of December, 1891, he went, on the advice of his attending physician, who accompanied him, to Chicago, Illinois, where his seventh rib was removed by a surgeon, ’and the wound sewed up; that he remained in the hospital at Chicago for about three weeks, when he returned to his home at Monon, Indiana, at which time his wound was healed up and was doing well, and on the 13th day of January,
The court further finds that said revolver was a self-cocker, and when loaded could be discharged by simply pulling the trigger, or by cocking the hammer and pulling the trigger; that when the hammer was down it rested between two cartridges, but on raising the hammer, the cylinder containing the cartridges revolved so as to bring in front of, and beneath, the hammer one of said cartridges. The revolver was known as an American Bull Dog of thirty-eight calibre.
The court further finds that there were no powder burns or marks on the face or forehead of the decedent; that some blood escaped from the wound in the forehead; that the skin of the forehead was not removed or denuded except in the space covered by said bullet hole, at and about which there were neither depression nor lividityof the skin; that at the time the pistol was discharged, it was not in the immediate contact. with the face or forehead of the deceased; that it was so far distant from the forehead of the decedent that no powder marks could be made on the forehead or face of the deceased; that
The court further finds that said decedent came to his death by accidentally shooting himself with said revolver, near the middle of the forehead, the bullet therefrom making a slightly downward course and going nearly through his head; that just before said revolver was discharged, the decedent was holding it in his right-hand with his index finger on the trigger.”
The appellant thereafter filed a written motion and reasons for a. new trial. The first cause assigned for a new trial is that the special finding of facts is not sustained by sufficient evidence. The court overruled the motion, appellant reserved the proper exception, judgment was rendered in favor of appellee for $2,199.30, and appellant, within the time allowed,filed abill of exceptions containing the evidence.
The error relied on for a reversal is that the court below erred in overruling appellant’s motion for a new trial.
The contention of counsel for appellant is that Nitterhouse died by suicide, and that the finding of the court that he died by accident is wholly unsupported by the evidence.
The appellant alleges in an affirmative answer that the insured came to his death by suicide. The issue thus made placed the burden upon the appellant to satisfy the trial court, by a fair preponderance of proof, of the truth of this defense. Home Benefit Assn. v. Sargent, 142 U. S. 691; Phillips v. Louisiana Equitable Life Ins. Co., 21 Amer. Rep. 549.
On the trial appellee read in evidence the certificate of
Counsel for appellant insist that all the evidence is confirmatory of, and none of it is antagonistic to, the statement of the physician constituting a part of the proof of loss, that the insured came to his death by suicide.
This is not the vital question presented for our consideration. The real question we are called upon to determine is whether all the evidence establishes, without controversy, the fact that the insured committed suicide. The burden was upon appellant to establish this issue to the satisfaction of the trial court by a fair preponderance of the evidence, and this appellant was required to do, not by a prima facie case alone, but by such proof as would withstand and overthrow all of the evidence to the contrary. Carver v. Carver, 97 Ind. 497 (511.)
The statements in the proofs of death, either of facts or of opinion, are not conclusive. Bachmeyer v. Mutual Reserve Fund Life Assn., 52 N. W. Rep. 101; Home Benefit Assn. v. Sargent, supra.
This court can not disturb the finding of the trial court unless there is an entire absence of evidence'tending to support some material point in issue.
We will now refer to some of the facts disclosed by the evidence: It appears that Mtterhouse had money and friends, a wife and four children; that his domestic relations were pleasant, and that he was sober and industrious. There was nothing shown in the previous history of his life to warrant the assertion that he came to
On the night before his death he slept well, and in the morning he partook of a hearty breakfast. The two daughters, Plelen and Mary, slept in the front bed-room up stairs, in which room the father that morning met his death. Soon after the deceased had risen from the breakfast table, and while Helen was' still in her bedroom, her father, as she testifies, “came up stairs and brought me my clothes, and told me to hurry and get dressed and go down and get the kitchen cleaned up.” Mrs. Nitterhouse testifies that this occurred while Mr. Newbold, who had called to see her husband, was in the sitting-room, and that as Helen’s clothes had been left there the night before, she could not come down for them.
Plelen says she was down stairs within five minutes after her father’s visit to her room, and, as she passed
Dr. Clayton, who saw the body the next day, testified in reference to the appearance, size and location of the hole in the forehead, as follows:
“Q. Did you examine the wound? A. No, sir; I just went in and looked at him, was all.
“Q. Did you see the hole in his head? A. Yes, sir, I did.
“Q,. Did you examine the wound to see what direction the ball took? A. No, sir.
“Q. Did you examine the back of the head? A. No sir.
“Q,. You.may state the appearance and size of the hole, and about where it was. A. It was about the center of the forehead, or near so.
“Q,. How much above the nose and eye? A. Well, I should think about midway, about the center of the forehead.
“Q. You may state how large the hole was. A. Well, it looked like it was produced by about a thirty-two caliber revolver, may be larger than that; I am not experienced and can’t say the size.”
Dr. Sampson, the coroner, testified as follows:
“Q. You may describe the appearance of the hole in
Robert Gray says: “I think the skin was burned a little if I remember right, I won’t say positive.”
“Q. I will ask you to state, Mr. Gray, if you saw any marks upon the forehead or face of Nitterhouse that indicated powder burns. A. No, sir.”
Counsel for appellant insist:
1. That the undisputed facts in the case exclude the possibility of any kind of an accident.
2. The fact that there were no powder marks upon his face proves conclusively that the muzzle of the revolver, when the pistol was discharged, was in close contact with his forehead, and that therefore the shooting was intentional.
It should be remembered in this connection that the statements in the physician’s certificate and in the coroner’s verdict that the insured committed suicide, and in the letter of appellee that the insured, while temporarily insane, shot himself, are merely the expression of opinions and were not in the court below and are not here in any sense conclusive. It should also be borne in mind that so strong is the instinctive love of life and so uniform the efforts of men to preserve their existence that suicide can not be presumed. The presumption is that the death of the insured was not voluntary. Waycott v. Metropolitan Life Ins. Co., 24 Atlantic Rep. 992.
In such cases where the proofs of death and the entire evidence introduced on the trial leave it in doubt how the death of the insured was caused, the question must be determined by the jury or trial court. Home Benefit Assn. v. Sargent, supra.
In Phillips v. Louisiana Equitable Life Ins. Co., supra, the court says: “Did the insured die by his own hand? The onus of proof is on the party who affirms this fact. And we do not think it has been legally proved. It is true that the witnesses who testify as to his death express it as' their opinion that he killed himself or committed suicide; but their opinion can not be regarded as evidence of the fact. Nor do the facts and circumstances proved point to the voluntary self-destruction of the insured to the exclusion of all other reasonable hypotheses. All the facts and circumstances proved in regard to his death, are that he retired to his room at bedtime and about one o’clock at night the report of a pistol was heard. When the inmates of the house came to the room, the insured was found in a reclining posture on the sofa, and a pistol was lying on the floor near by. He had been shot in the mouth. It is possible that he might have shot himself accidentally. * * * The evidence
In our opinion, the absence of the powder marks upon his face, in the light of the other facts and circumstances in the case, do not show conclusively that the muzzle of the revolver when discharged was in close contact with his forehead and that the shooting was intentional.
We quote from section 287, vol. 3 (4th ed.), Wharton and Stille’s Medical Jurisprudence, as follows: “Gunshot wounds present striking differences in their appearance, according to the distance at which the piece was fired, and the number and character of the projectiles. If exploded in immediate contact with the body, the wound is large and circular, the skin denuded, blackened and burned, and the point at which the ball entered is livid and depressed. The blackened and burned appearance of the skin is due to the imperfect combustion of the grains of powder.”
If the piece is held near, but not in immediate contact with the body, the authors say: “The eyebrows, lashes and lids were completely burned, and a large number of grains of powder had imbedded themselves in the cheek. Experiments being made in order to determine the distance required to produce these effects, it was found that the weapon must have been held within a foot’s distance.” Wharton and Stille’s Medical Jurisprudence, section 287, vol. 3 (4th ed.).
In the case under consideration, the conditions either as to “contact” or “near” wounds are not clearly shown to exist. His face and forehead did not present the appearance described by the authorities. The evidence tended to prove that there were no powder marks or burns about his face. The wound, as to appearance and size, seems to have been natural, and the skin at the point of entry was not livid and depressed.
In our judgment, .from these facts and circumstances and all the other facts and circumstances disclosed by the evidence, the trial court was authorized in drawing the inference, not only that the revolver was held at a distance when fired, but also that the shooting was accidental and not intentional.
We find no reversible error in the record.
Judgment affirmed.