Scott v. Homesteaders , 149 Iowa 541 ( 1910 )

Evans, J.

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 two cases are based upon similar policies upon the life of said H W. Scott, and in favor of the plaintiff as the beneficiary in each. The cases were tried' separately, but upon substantially the same evidence, and substantially the same questions are presented in both cases here. In our opinion already filed in the first case, we have passed upon all the questions presented on this appeal except two which we are about to note. Without repeating the discussion already had in the former case, we will confine our attention to the two alleged errors which differentiate the record in this case from that in the other.

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.

It is now argued that the objection above noted should have been sustained, and that evidence of the alleged experiment should not have been permitted because (a) it was made with a 22-caliber pistol, whereas the pistol found near the dead body of Scott was of a larger caliber; and because (b) a bacon skin supported by a cabbage head did not present sufficient similarity of condition to render evidence of the experiment admissible. The rule contended for by appellant is, that evidence of experiments is admissible only when the experiment is shown to have been made under essentially the same conditions. This rule may be conceded for the purpose of this discussion, although it falls somewhat short of reaching the real question presented to us by this record. But this is an abstract rule only, and its application varies with the particular circumstances of each case. It has been held by this court, that the important question to have in view in passing upon the admissibility of such testimony is: Will it aid rather than confuse the jury in reaching its conclusion? In this case, the defendant itself took the initiative on this question and offered expert opinion, based upon alleged observation and experiment with pistols generally, regardless of caliber, and opened a wide door to plaintiff. The evidence complained of was directly responsive to such testimony offered on behalf of the defendant. An important circumstance in the case was the fact that no cauterization or powder marks appeared about the wound. This circumstance on its face tended to negative the theory of suicide. It is generally conceded that a self-inflicted gunshot wound is usually characterized by powder-marks about the opening of the wound. This condition results because of the close proximity at which the muzzle of the weapon is necessarily held from the point of injury. As the distance increases, the chances for such a condition become less. As against this, however, the defendant advanced the theory that where the muzzle of a pistol or revolver is held close enough against the point of injury to prevent communication with the outside atmosphere, no powder marks will appear on the outside of the wound, and it introduced expert evidence to that effect. This expert opinion was based upon alleged observation and experiment. In the expert testimony offered by the defendant to this effect, no differentiation was claimed as to the caliber of pistols or revolvers.

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-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 the revolver is concerned, and is in no position to complain thereof.

2'SAME' Turning now to the question whether the difference between a bacon skin and a cabbage head, and human skin and a human head, presents such an essential difference in condition as to render the evidence inadmissible, we have to say that we do not think

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. Fraternal Insurance: suicide: circumstantial evidence: instructions. II. The other point, wherein the record in the differs somewhat from that in the former present ease case, relates to the instructions of the court. Complaint is directed to instructions numbered 6 and 7. In order to deal with these complaints, we must consider also other instructions given, and we set out herewith six of the instructions:

(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 determination 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.

4. Same: misleading instructions. Turning now to the seventh instruction, the criticism is directed against the last sentence thereof, and is twofold. The first criticism is directed against the nse of the word “satisfy.” It is to be noted that satisfy you by the preponderance oi the evidence” is the language of the court. The use of the word “satisfy” without this qualification has been heretofore condemned in Rosenbaum v. Levitt, 109 Iowa, 292. In Ball v. Marquis, 122 Iowa, 665, where the use of the word “satisfy” was qualified as in this case by the rule as to preponderance of evidence, it was held that the instruction was not misleading, although the use of this particular language was criticised. A similar state of the record appeared in Jerolman v. C. G. W. Ry. Co., 108 Iowa, 178. In that case, also, the use of the language was criticised as possibly misleading, but it was held that, taken in connection with other instructions, it was not misleading. We are disposed now to repeat the criticism of this particular language with some emphasis, as being upon the verge of error. But in view of the qualifications shown in the instruction itself, we are constrained to follow the cited cases and hold .that the instruction was not technically erroneous nor misleading at this point.

5. Same: suicide: instructions. The further criticism made upon this instruction No. 1 .is directed to the last clause, namely, “and if, after considering all of the evidence in the case, you are unable 1° say by whom or how said wound was inflicted, then your verdict should be for the plaintiff.” The argument is that this part of the instruction placed on the defendant the burden of proving two negatives: (1) That the deceased was not murdered. (2) That his death was not caused by accident. It is argued that it is not incumbent upon the defendant to prove either of these, propositions but that it was incumbent on it only to prove that death was caused by suicide. As a matter of mere logic, this position may be conceded. But the evidence in this case was such that proof of suicide necessarily negatived the hypothesis either of murder or of accident. The nature of the case in this respect is well stated in another part -of appellant’s argument as follows: “The jury had to find that the death was a matter of murder, accident, or suicide. They could not find it was not suicide, unless it was one of the other two.” To which may properly be added, that they could not find it was suicide without finding that it was neither murder nor accident. The burden was on the defendant to prove the suicide. It followed logically that it woiild have the burden of proving two negatives, in the sense in which it complains of the instruction.

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 answer in order to make it fully responsive to such interrogatory, it could be no more than to say that suck wound was so inflicted by skooting witk a revolver. Concededly, the defendant was not entitled to a verdict, unless the jury could say from all tke evidence that tke wound was intentionally inflicted by Scott himself. Granting tkat tkat muck was sufficient for the purpose of a verdict in favor of defendant, and tkat the details of method were not material, yet tke method of inflicting the wound, as by skooting witk a revolver, was one of the conceded facts in the case and enters into tke tkeory of each party. If tke jury could kave deemed it necessary to make a finding thereon, it would kave been formal only and would kave added nothing to tke burden on tke defendant. Whether, therefore, tke expression “whom or how” be construed as conjunctive or disjunctive, it could work no prejudice to tke defendant. Further, if there was danger of misleading the jury by want of precision and directness in tke language of tke instruction at this point, it was all quite cleared by instruction No. 9, wkick we kave above set forth, wherein the attention of tke jury was properly and concisely directed to the one question for determination.

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 be placed close enough to the surface of the object, so that smoke or powder could not escape. To accomplish this successfully a “soft surface” was required, because a hard surface woidd permit the escape of smoke. This was the theory put forward by appellant by its expert testimony. •Did the testimony of Dr. Myerly, on behalf of appellee, fairly tend to negative this testimony of Dr. Bannister? That is the only fair question at this point. What the witness Myerly called “bacon skin” is characterized in the dissenting opinion as “hog meat.” Inasmuch as this is literally correct, we do not complain of the characterization, although it makes the comparison with a human head somewhat more odious. The writer hereof will be swift to concede that there is a difference between a human head and “hog meat,” but he is not ready to concede that the former is more “soft” than the latter. Hard “pressure” of the revolver and a “soft surface,” upon which to press it, were the essential conditions to a successful experiment according to appellant’s witness. If the “hog meat” and the cabbage head met the condition as to a “soft surface,” and if Myerly met the condition as to “pressing hard” upon it with a revolver, then how can it be said, as a matter of law, that the conditions of Myerly’s experiments were not similar to those described by Bannister ? Plaintiff did not take the initiative on this subject. She did not offer this testimony as affirmative proof of homicide or accident. She offered it only to negative a theory advanced by appellant’s witness. The testimony of Myerly was fairly responsive to that of Bannister and it tended to disprove his theory.

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 difference has not been pointed ont in the dissenting opinion. This rule inheres in the very nature of circumstantial evidence. The weight of the - evidence is quite another question and this instruction does not purport to deal with that.

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.