Kane v. Supreme Tent of the Knights of the Maccabees of the World , 113 Mo. App. 104 ( 1905 )

BLAND, P. J.

(after stating the facts). — 1. The by-laws enacted by the association fori settlement of claims within the association provide for two appeals; first, by the claimant to the court of appeals; second, an appeal from the decision of the court of appeals to the supreme tent, which may be taken by either party. The supreme tent, we understand, does not convene oftener than once in two or three years, hence these bylaws make it possible to keep a claim pending before .the tribunals provided by the association, for two, three or more years before the claimant can resort to the courts to enforce his or her claim. For this reason it seems to us that their partial effect is to oust the courts of -their jurisdiction to try these claims. They are at least unreasonable, and for this reason cannot be upheld by the courts. [Bacon on Benefit Societies, sec. 450; McMahon v. Maccabees, 151 Mo. 522; Strasser v. Staats, 66 N. Y. Sup. Ct. 143; Brown v. Order of Forresters, 176 N. Y. 132.] And we hold that the suit was not prematurely brought.

2. The evidence shows beyond a reasonable doubt that Walsh came to his death by a pistol shot fired from his own hand, either accidentally or with suicidal intent* In these circumstances, the law presumes that death was accidental, but this presumption is not conclusive; it is only a presumption of a fact and may be overturned by evidence. The defendant undertook to overturn this presumption by introducing evidence of the mental condition of Walsh on the evening before his death, and the circumstances and surroundings under which the dead body was found. The trial court seems to have been of the opinion that the circumstances were insufficient to overturn the presumption of accidental death. There seems to be some contradiction in the decisions as to the quantum of circumstancial evidence required. to overturn the presumption of accident.

In Boynton v. Assurance Company, 52 L. R. A. 687, 105 La. 202, it was held, in an action to recover the amount of an insurance policy, for the defense of suicide to avail, the defendant should show that every reasonable hypothesis of an accidental death is excluded by the evidence. We followed the Boynton case in Shotliff v. Modern Woodmen, 100 Mo. App. 1. c. 143, 73 S. W. 326, Bacon says, “When circumstantial evidence, only, is relied on the defense fails unless the circumstances exclude with reasonable certainty, any hypothesis of death by accident, or by the act of another.” [Sec. 336a.]

On principle, it seems to us that these cases and the author give too much weight to the presumption that a sane man found-dead, with a discharged pistol by his side, did not commit suicide. The presumption is only one of fact and ought not to have any greater weight than to cast the burden of proving suicide to the reasonable 'satisfaction of the jury upon the party asserting it. It was an issue of fact in this case whether or not Walsh shot himself accidentally or with suicidal intent. But for this presumption the bnrden of proving that .the shooting was accidental would have been on the plaintiff, therefore, with the presumption in her favor, the burden was cast on the defendant, and it does seem that the presumption against suicide should not stand if overthrown by a preponderance of the testimony reasonably satisfactory to the jury, that the deceased committed self-destruction, and the law has been so declared in a number of well-considered cases. [Standard Life & A. Ins. Co. v. Thornton, 100 Fed. 582, 49 L. R. A. 116; Phillips v. Louisana Equitable Life Insurance Co., 26 La. Ann. 404; Mallory v. Travelers’ Ins. Co., 47 N. Y. 52; Grand Lodge, etc., v. Wieting, 168 Ill. 408; Mutual Life Ins. Co. of N. Y. v. Miswell, 35 L. R. A. 258, 56 Kan. 765.]

The evidence was all circumstantial as to the manner and means of Walsh’s death, but we think the circumstances were such as tended to overthrow the presumption of accidental death and that the question of suicide or accidental death should-have been submitted to the jury under appropriate instructions.

3. Defendant offered the coroner’s inquest in evidence, which was rejected by the court. • This action is assigned as error. That these inquests are admissible in civil cases as prima facie evidence of the manner and means by which the deceased came to his death, has been held by many respectable authorities, and is stated to be the law by such eminent text-writers as Greenleaf, Phillips and Roscoe. There is a great array of equally respectable authorities to the contrary. Considering the loose and unsatisfactory manner in which these postmortems are often held, we think the verdict of the coronor’s jury would, in most instances, be as likely to lead the triers of the fact away from the truth as toward it. It seems to us that they ought to be classed rather as hearsay than as the result of a judicial investigation and for this reason, rejected as evidence in civil cases.

For the reason too great emphasis was given to the presumption that Walsh came to his death by accident, the judgment is reversed and the cause remanded.

Goode and Nortoni, JJ., concur.