Wilkinson v. National Life Assn.

I respectfully dissent from the conclusion reached by the majority that a jury question is presented in the instant case. The ruling of the trial court in sustaining the motion of the defendant for a directed verdict has no relation to the ruling of the trial court on the admissibility of the verdict of the coroner's jury respecting the cause of death of plaintiff's decedent.

I recognize that the numerical weight of judicial authority is opposed to the admissibility of the proceedings on an inquest and verdict therein in a subsequent civil proceeding, and I therefore concur in the reasoning and the principle stated in Division II of the majority opinion. This matter is not of the essence of the primary question involved on this appeal.

The policy in suit was issued October 25, 1919. The insured died August 26, 1921. The policy contains this clause:

"If within two years from the date of issue of this policy, the insured shall, whether sane or insane, die by his own hand or act, the liability of the association shall be limited to the amount paid to it by the insured on account of said policy."

Did the insured voluntarily fire the shot that caused his death, or was the discharge accidental? It is certain that D.M. Barrett did not die from a natural cause, and it is not claimed that his death resulted from a felonious homicide. If there is but one conclusion that can fairly and reasonably be drawn from a consideration of all the evidence in the case, — namely, that Barrett's death resulted from a gunshot wound intentionally inflicted by himself, — the ruling of the trial court in directing a verdict for the defendant should be sustained. In my judgment, there is but one conclusion that can be predicated on the physical facts, and there are no other controlling facts.

The rule is quite universal that, when death is shown, it is presumed to have resulted from an accidental cause, and not from suicide. In commenting on this proposition, it is said inTomlinson v. Sovereign Camp W.O.W., 160 Iowa 472:

"This, of course, is not a legal presumption, but rather a presumption of fact, or inference, which is to be drawn from the fact that men do not, as a rule, commit suicide; * * * It is a rebuttable presumption, and, in cases like the present, casts the burden upon the defendant of showing that the wound which caused the death was self-inflicted or suicidal in character."

In other words, the defendant must overcome this presumption of fact by affirmative evidence and the permissible inferences to be drawn therefrom.

The question then is: Do the facts disclosed by the evidence in the case at bar so negative the presumption that death was accidental as to leave no other reasonable hypothesis than that of suicide? I make answer in the affirmative. The physical facts at the time the body was found, offer no reasonable explanation except that the death of the insured resulted from an act of self-destruction.

The defendant lived on a rented farm about four miles east and a mile and a half south of Paton, Iowa. His body was found some distance from the house, in a cornfield on the farm, about 4 rods from the fence, shortly before 9 o'clock on the morning of August 26, 1921. He was lying prostrate on his back, with his feet to the north and his head to the south. The shotgun, with one shell exploded, was lying about 5 or 6 feet and a little to the northeast of his feet, with the muzzle of the gun pointing toward the body. The recoil of the gun explains its position. The hole in the body caused by the shot was round, and about the size of a 25-cent piece. His clothing, where the shot entered his body, was powder-marked. The shot entered the left breast directly over the heart, coursing downward from horizontal. The location of the wound and the course of the shot preclude the inference that the gun was fired by dragging it.

The gun that was used was a 12-gauge pump-model shotgun, weighing about 7 or 8 pounds. The barrel of the gun was about 30 inches long.

Barrett was not a stranger to the use of a gun, and the evidence negatives the inference that the gun was accidentally fired by his tripping or stumbling as he walked along. There is nothing shown in the field that would cause the accidental discharge of the gun. On the contrary, it is shown that a cornstalk, with the end cut off by a sharp knife, was found "lying close to where the body was." The fair inference is that the cornstalk was the means used by Barrett to release the trigger. The conclusion is inescapable that the butt of the gun at the time the shot was fired was slightly higher than the muzzle, and, when fired, must have been placed or held directly in front of the body and in close proximity thereto.

The medical testimony discloses that Barrett must have fallen back immediately, and died almost instantly, upon receiving the shot, and that his body did not move thereafter. Doctor Waddell, who was immediately called, and who examined the body before it was moved, testified:

"When I opened the clothing on the body, I noticed that there wasn't even a drop of blood on the outside; and when we picked the body up, and went to move it, the blood rushed out of the wound and over my clothes, and it bled freely. It indicated that there had been an internal hemorrhage."

The condition of the body and circumstances attending its discovery negative the theory of accident. The evidence, as a whole, is consistent with the conclusion of suicide, and it may not be said that the facts are equally consistent with some other conclusion.

The administrator, prior to the commencement of this action, upon filing his application in the probate court for authority to make settlement with the defendant-company, pursuant to the stipulation in the policy for the refunding of the premiums paid by decedent, alleged under oath that David M. Barrett "came to his death by his own hand." We do not stress this recital, and it was subject to explanation. Nevertheless, it discloses the attitude and conclusion of affiant in the matter at that time.

Some attention is given in argument to the question of motive. It is but natural in a case of this character that this inquiry should arise. However, the physical facts and the attending circumstances constitute a complete answer to the primary question involved on this appeal. The psychology of the case is incidental, and in reaching a decision we are not compelled to adopt the philosophy of Hamlet, and wonder why the insured did "his quietus make," rather than "sweat and grunt under a weary life."

To submit a case of this character to a jury is simply to permit the jurors to wander into the fields of speculation and conjecture. As said in De Weese v. Sovereign Camp W.O.W.,110 Kan. 434 (204 P. 523):

"Jurors are not to be permitted to shut their eyes to what everybody else sees and understands, and wander off into fields of imagination and suspicion, in order to reach verdicts. Courts are more and more realizing and declaring that they must not permit themselves to be more ignorant than anybody else, or fail to see what is plain to everyone and everybody except a court."

I reach the conclusion that the evidence sustains the contention of appellee, and that the ruling of the trial court should be affirmed.