Cummings v. Sovereign Camp of the Woodmen of the World , 170 Mo. App. 194 ( 1913 )

FARRINGTON, J. —

This was a suit brought by the respondent, the widow of W. A. Cummings, who in his lifetime held a beneficiary certificate in the defendant order. It appears that when the deceased met his death on January 23,1912', he was in good standing-in the order. The defendant seeks to evade the payment to the plaintiff, the beneficiary in the certificate, first, on the ground that the insured came to his death as the direct result of drinking intoxicating, liquors, and second, that he committed suicide. The following provisions of the beneficiary certificate are pleaded in the answer:

“I agree that in the event of my death by my own hand or act, whether I am at the time sane or insane, then my beneficiary certificate in said order shall he null and void and of no effect, and all rights and benefits which may have accrued on account thereof shall he absolutely forfeited.”

“If the member holding this certificate . . . should die in consequence of a duel or from the direct result of drinking intoxicating liquors ... or by his own act or hand, whether sane or insane . . . this certificate shall be null and void and of no effect, and all moneys which shall have been paid' and all rights and benefits which have accrued on account of the certificate shall be absolutely forfeited without notice or service.”

Judgment was rendered on the verdict for plaintiff in the sum of $1100, of which amount $1000 was the amount called for in the beneficiary certificate and .$100 was the price, to be paid by defendant for the erection of a monument to the memory of the insured.

The appellant complains of the action of the trial court in submitting — under the evidence in the case— the question of fact to be found by the jury as to whether the insured came to his death by his own hand or act or in consequence of the use of intoxicating liquors, and insists that the court erred in refusing to direct a verdict in its favor at the close of all the evidence.

When plaintiff introduced the beneficiary certificate showing that she was the beneficiary named therein, and that the insured was a member in good standing and had died, she had made a prima facie case, and the burden was on the defendant to establish by a preponderance of the evidence to the satisfaction of the jury that the insured came to his death by his own hand or act, or that his death was the direct result of drinking intoxicating liquors. If there is any evidence of a substantial character from which an inference could reasonably be drawn by the jury that neither of the defenses had been established, the verdict, being supported by such evidence, must stand as a verity of the facts found and be conclusive on the appellate court.

As to the contention that the evidence conclusively shows that the death of the insured was the direct result of drinking intoxicating liquors, there is abundant testimony from which the jury could reasonably find that Cummings did not die from such cause. While there is testimony .that he indulged in occasional drinking spells, and the testimony of one witness is that he was drinking about four o’clock of the afternoon of the day of his death, yet none of the witnesses swore that from his use of intoxicants he was ever rendered incapable of taking care of himself or attending to his regular duties. It also appears that on two occasions, within about a year before his death, he had been taken in charge by police officers as being intoxicated, but on one of these occasions he had been sent home soon after the officers took him to the police station and on the other he had been detained over night and discharged the next morning. The testi-money of his employer, Mr. Romare, was that he had left the insured in charge of the harness shop all that day until about four o’clock in the afternoon, and that deceased took.in the money and made the entries on the books; and while this witness says the insured had been drinking some, he does not say that Cummings was unable to take care of himself and attend to the business. On the other hand, some of the witnesses for the defendant swore that deceased could not be called a drunkard; that at most he occasionally took drinks and was subject to periodical drinking spells. The testimony of the plaintiff on this phase of the case is that her husband had never come home drunk; that on some occasions she had noticed that he had been drinking; that on the afternoon of the day of his death, between four and six o’clock (the time concerning which Mr. Romare testified), she was in the harness shop with their child and a baby of a neighbor woman and talked with her husband and that he showed affection for the- child, and introduced her to a traveling man who was in the shop; that when he came home about 7:30 if he was intoxicated she did not discern it. On. testimony of this character, it would be advancing far beyond the domain of an appellate court to set aside a verdict and find as a matter of law that the death of the insured was the direct result of drinking intoxicating liquors.

Appellant insists that the evidence points to suicide as the cause of the death of the insured with such overwhelming force as to exclude every other reasonable cause for the death, and that for this reason its peremptory instruction should have been given.

There is no doubt or dispute that the death was caused by a gunshot wound inflicted ¿bout one inch back of the right ear of the insured. The evidence shows that he. reached home about 7:30 o ’clock in the evening, more' or less excited about something, and that he called for his gun which had been put away in the folding hed by his wife; that plaintiff took their child and went to a neighbor’s house nearby, and that when she returned her husband was lying on the floor with the wound inflicted and in an unconscious state, and that he soon died without regaining consciousness. From these undisputed facts, it is obvious that the insured lost Ms life from one of three causes, namely, accident, murder, or suicide.

That the burden is on the defendant to establish its plea of suicide is the well-settled rule in this State. And in Richey v. W. O. W., 163 Mo. App. l. c. 247, 146 S. W. 461, the following language appears: ‘ ‘ The presumption against suicide is very strong — strong as the universal instinct for life — but it may be overcome by proof just as the instinct for life, in individual instances, may be overmastered by a desire for death, and we perceive no reason in law or logic for saying that the fact of suicide cannot be established by law.”

From all the facts and circumstances attending this tragedy, shall it be said that it was unreasonable to find that the insured did not Mil himself?

It is true, there is evidence on which a jury could find that the shot was fired intentionally by the insured, and, with such a finding, it would be error to set the same aside for want of evidence to support it. On the other hand, we have a case here where the insured reached his home in an excited state of mind, telling his wife he had had some trouble with some one and aslring for his gun, saying that some one was going to Mil him. The plaintiff testified that before she opened the door for him to come in she heard him in conversation with some one on the front porch, and that about a week before his death he told her he had some trouble with some one. According to her story, she refused to get the gun for him and left him in the room in an excited state of mind but without a gun; that she was gone about five minutes and that when she returned her husband was lying on the floor, having received the fatal wound. There is no evidence that anyone else was seen in or about the place until after she found him lying on the floor when the neighbors came in to ascertain the cause of the trouble. As this occurred in the month of January between 7:30 and 8 o’clock, the darkness of night had fallen, and had there been anyone in the front yard with whom the insured had carried on a conversation, it is possible the plaintiff would not have seen the person; there is no evidence that she looked to see whether there was anyone in the immediate vicinity of the house. She testified that she took the child and left for fear trouble would follow, but this, of course, could be as reasonably explained on the theory that she did think her husband was about to have trouble with some one who was on the outside.of the house as that she thought he intended to commit suicide; and his actions as detailed by her on cross-examination, and according to Eomare’s testimony as to what she told him immediately after the occurrence, could be justified either on the theory that he was about to commit suicide or that he was in fear of immediate trouble with some one on the outside of the house.

Wo do not think it is conclusive evidence establishing suicide to show that a man is found lying on the floor of his home mortally wounded when no one saw him inflict the wound, and when there is evidence tending to show that he had had trouble with some one, and when the man’s condition in life was in every way pleasant and agreeable. There is a total failure of proof in this record of any motive for suicide. The insured was industrious, the testimony being that for two years he had not missed a day’s work. There is no evidence of any indebtedness bearing down upon him; no despondency or grief is shown; his family relations and surroundings, so far as the record discloses, were all that could be desired by a man in his station in life. The only testimony of a positive and direct nature looking to suicide as the cause of the death — other than the physical fact of his body being found with a mortal wound in his head — was that of E ornare, who testified that plaintiff immediately after the occurrence told him that the deceased secured the gun before she left tbe bouse and told ber to run witb tbe child and that be fired one shot as she went out the door. This alleged statement of tbe plaintiff, if true and if made, would tend strongly to establish suicide; but-this was oral testimony of a witness and not a physical fact evidencing suicide, and, besides, tbe plaintiff denies that she made such a statement. Tbe beneficiary is not precluded from denying, as a witness in ber own behalf, statements appearing even in tbe proofs of death which are usually made with more deliberation than are oral statements made immediately after a tragic death. [Newland v. Modern Woodmen, 168 Mo. App. 311, 153 S. W. 1097, 1100.] Moreover, Bomare testified that plaintiff was hysterical at the time she talked to him, and that her talk was incoherent except the portions detailed by him on the witness stand. The jury had the right to weigh this testimony and judge the credibility of the witnesses and believe the one or the other. They believed and found for the plaintiff, and such finding, under the circumstances of this case, was strictly within their province.

It is to be noted in this case that there is a total absence of proof that the pistol which was exhibited at the trial was the one owned by the insured which the widow says she had previously put away in the folding bed; that there is no evidence that the size of the bullet that inflicted the wound was the size of the bullet that could be shot from the pistol which the widow says she put away in the folding bed, or that the bullet that inflicted the wound was fired from the pistol exhibited at the trial; that there was no attempt made to show whether there was a powder burn around the wound, although neighbors and officers were in the room and viewed the body immediately after the accident, and although defendant called as a witness the coroner of Jasper county, who stated he was a physician of nine years’ experience and had been coroner for five years at the time he examined the dead body of the insured and who otherwise described the nature of the wound. There is evidence that a gun was handed to a policeman by some one unknown to him after the room had become crowded, and the gun which was handed to him was produced at the trial, but there is no evidence whatever that the bullet which caused the death was a size which the gun produced would fire.

This case does not present a state of facts parallel to that found to exist in the case of Richey v. W. O. W., supra, because the facts here submitted to the jury cannot be said to be so clear and indisputable as to exclude every other reasonable hypothesis that the insured committed suicide.

We are permitted to reverse judgments because we, perhaps, as triers of the fact might have believed that the preponderance of the testimony called for a verdict different from the one actually returned; however the probative force of the evidence strikes us, we are not justified in saying in this case that the conclusion of the jury that the deceased met his death from some cause other than suicide was unreasonable and so. palpably contrary to the evidence as to warrant a reversal. The only physical fact connected with the occurrence is that the insured was found dead or dying with a bullet wound in his head. The testimony was entirely oral — and the oral testimony which would tend strongly to establish suicide was controverted by oral testimony. It is the province of the jury to pass on conflicting evidence. [Cathey v. Railroad, 149 Mo. App. 134, 130 S. W. 130.] It is for the jury to consider the weight of the testimony, however great the weight or preponderance of the evidence may be. [H. A. Johnson & Co. v. Springfield Ice & R. Co., 143 Mo. App. 441, 127 S. W. 692.] The appellate court will not ordinarily in law cases attempt to determine where the preponderance of evidence lies, that duty devolving on the jury trying the case, subject to the supervising control of the trial court, and it is only when the preponderance of' the evidence is so overwhelming and manifestly against the verdict as necessarily to imply prejudice, passion, or corruption that the appellate court will interfere. [Neil v. Cunningham Store Co., 149 Mo. App. 53, 130 S. W. 503.] A verdict supported by any substantial evidence is conclusive on appeal. [Trout v. Laclede Gas Light Co., 151 Mo. App. 207, 132 S. W. 58.] Where, as in this ease, the issue of fact presented in defendant’s .answer, i. e., suicide, is controverted, and the burden of proof as to that issue is upon the defendant and the evidence offered to sustain it is oral, and where a clear conflict in the evidence ensues, it would be a blow in the face of all the decisions to hold that the trial judge should arbitrarily have commanded the jury to believe the oral testimony of the defendant — no matter how strongly it may preponderate. [McCrosky v. Murray, 142 Mo. App. 133, 125 S. W. 226; Wolff v. Campbell, 110 Mo. l. c. 120, 19 S. W. 622.]

As we understand the law, the jury by the instructions should be required to pass on the issue of suicide according to their conception of the perponderance of the evidence. This rule, however, cannot be invoked by the appellate court when asked to set aside the judgment and verdict. Our question is, Can we say from all the testimony that every reasonable hypothesis for the death is excluded except suicide? — that the only way to account for the death is to say that it was suicide? This, for the reason that if there is any other reasonable hypothesis on which the death may be accounted for, the appellate court has no right to say that the jury did not rely and find on such other hypothesis.

With reference to the one hundred dollars allowed by the verdict and judgment to the plaintiff for the erection of a monument, the policy provides: “There shall be paid the sum of one hundred dollars for the erection of a monument to his memory. ’ ’ The by-laws of the defendant provides that the monument is to be erected by a contractor through the local camp, and that after the monument has been erected the sovereign monument committee will on proper showing of the erection of the monument draw a warrant on the beneficiary fund in favor of the contractor in payment for the same. This by-law in no wise relieves the defendant from its obligation to erect the monument but merely provides the manner of its erection and of the payment therefor. Under the provision in the policy and that found in the by-law, there is no binding obligation on the defendant to pay this sum to the beneficiary; and should it be turned over to her in this case there is no obligation on her to erect the monument, and should it be so turned over to her and she should fail to erect the monument, this would defeat the very purpose of the provision in the policy, to-wit, that a monument costing one hundred dollars would be erected to his memory. As we conceive this matter, since we have held that the policy is in force and requires the defendant to pay the beneficiary the one thousand dollars, the situation is the same as •though the defendant had paid the one thousand dollars without contest, in which event there would have accrued a right to have the monument erected according to the by-law and the provision of the policy. The record fails to disclose that plaintiff has expended any money for - a monument or that she has entered into a contract for the erection of a monument. She has the same right to enforce that provision of the policy as she would have had if the defendant had paid the one thousand dollars without contest, and this opinion is not to be construed as relieving the defendant of the duty to erect the monument as agreed. We do not see on what theory the trial court could have awarded plaintiff this one hundred dollars. If the plaintiff will within ten days from the date of the filing of this opinion file with the clerk of this court a written remittitur of one hundred dollars of the judgment, the same will be affirmed; otherwise, it will be reversed and the cause remanded for a new trial.

Shir gis, J., concurs. Robertson, P. J., dissents as' to the last paragraph of this opinion.