Bernick v. Illinois Commercial Men's Ass'n , 1912 Ill. App. LEXIS 189 ( 1912 )

Mr. Justice Baume

delivered the opinion of the court.

This is a suit by appellant against appellee instituted in the Municipal Court to recover $5,000 upon a certificate of insurance against accidental death, issued by appellee to John P. Bernick, the husband of appellant. At the close of the evidence for appellant a peremptory instruction tendered by appellee was ’ refused by the court, but at the close of all the evidence the court gave to the jury a peremptory instruction then tendered by appellee, and upon the directed verdict finding the issues for appellee, judgment was entered against appellant for costs.

The sole question involved is whether the evidence, together with all reasonable inferences deducible therefrom, considered most favorably for appellant, warranted the court in instructing the jury that appellant had failed to show that the death of the insured resulted, independently of all other causes, from bodily injuries received through external, violent and accidental means.

The facts are not controverted. At the time of his death on May 12, 1909, John P. Bernick was 36 years of age and resided with his wife and three children in St. Joseph, Minn. His domestic relations were free-from trouble. He was and had been for about six months a traveling salesman for a wholesale liquor dealer with headquarters in St. Paul. He had successively been constable and village marshal in St. Joseph, and deputy sheriff and sheriff of Stearns county. On May 10th he stopped at his home in St. Joseph a few hours, while on his way to St. Paul, and gave his wife $40. He then had, as it appeared to her, $200 or $300 in bills. After leaving St. Joseph for St. Paul on May 10th, the evidence does not disclose his whereabouts until about 11 o’clock on the night of May 11th, when he, together with two young men whom the attendant did not know, appeared at Debach Bros, bath parlors in St. Paul. Bernick and bis companions then had a turkish bath, after which each retired to a separate small room or apartment in which was a cot or small bed, to remain during the night. Burnick was not observed again until about 7 o’clock in the morning, when he was given an alcohol rub by the attendant, after which he told the attendant he wanted to lie down a little longer. "When Paul E. Conley, the day attendant, arrived, he noticed a call marked on the board for Bernick at 10 o’clock, and at that time he opened the door of Bernick’s room and saw him lying on the bed on his right side, beneath the covers, with his head exposed upon the pillow and his eyes open. Conley then told Bernick it was 10 o’clock, whereupon Bernick thanked him, and Conley shut the door, which closed with a spring lock, and left the room. About half an hour thereafter Conley heard a shot which he thought proceeded from the room occupied by Bernick, and immediately went to the door of the room where he listened and “heard a trickling sound as if liquid was running.” He then unlocked the door and saw Bernick with his underclothes on lying on his left side upon the bed wih his head toward the foot of the bed, the posterior part of his body about the center of the bed, his feet and legs below the knees extending over the side of the bed, his right hand grasping the butt of a revolver which was resting on the right side of his body with the muzzle turned upward, and the fingers of his right hand slowly relaxing. The cartridge in one chamber of the revolver had been discharged and the other chambers were loaded. A bullet had entered Bernick’s right temple about midway between the upper attachment of the ear and the outer margin of the eye and emerged from the left temple at a point slightly above the point where it had entered the right temple. The flesh on the right temple was lacerated, seared and powder burned. In the wall of the room, at a point about on a line with the head of Bernick, if he had been sitting on the bed when the shot was fired, was a fresh indenture apparently made by a bullet, which was found in the room. Bernick’s clothes were found hanging in the room and a search disclosed that he had only thirty-nine cents. He habitually carried a revolver which upon retiring for the night he placed under his pillow, and which one witness testified, he handled so carelessly that the witness had frequently warned him of the danger of so doing.

Where, as in the case at bar, the only question involved is whether the injury which caused the death of the insured was accidental or self-inflicted, the burden of proof is cast upon the plaintiff to show that such injury was accidental and not self-inflicted. Fidelity & Casualty Co. of New York v. Weise, 182 Ill. 496; Wilkinson v. Aetna Life Ins. Co., 240 Ill. 205.

While the legal presumption that all men are sane and are prompted by the natural instincts of self-preservation to avoid injury and death, may, in the absence of proof to the contrary, establish prima facie that the injury which caused death was not self-inflicted, such presumption is rebuttable by proof and by the circumstances in evidence surrounding the death. Wilkinson v. Aetna Life Ins. Co., supra.

The coroner’s certificate of his official investigation of the cause of the death of the insured states that the insured “met his death by gunshot wound (suicide).”

Upon the uncontroverted evidence and circumstances appearing in evidence the only reasonable conclusion to be deduced is that the injury which caused the death of the insured was self-inflicted and not accidental.

The position in which the body of the insured was found upon the bed, the manner in which the revolver was held by the insured and its position upon and against his body, the location and character of the wound, the course taken by the bullet and the location in the wall of the indenture made by the bullet, all unmistakably tend to show that, while sitting upright upon the bed with his legs projecting over the side of the bed, he directed the muzzle of his revolver horizontally towards and nearly against his right temple and so fired said revolver, and that the wound or injury made by the bullet was self-inflicted and not accidental.

A supposition is indulged in by counsel for appellant that the insured on May 11th turned over to his employer in settlement of the collections made by him, the money shown to have been in his possession on May 10th, but such supposition is not substantiated by proof which must have been available to appellant, if it existed.

The peremptory instruction was not improperly given to the jury and the judgment is affirmed.

Judgment affirmed.