Rohloff v. Aid Ass'n for Lutherans

109 N.W. 989, 130 Wis. 61, 1906 Wisc. LEXIS 25

• Court: Wisconsin Supreme Court
• Decided: December 4, 1906
• Status: Published

Opinion

Cassoday, C. J.

1. Error is assigned because the court refused to abate the action. This is based upon the ground that the amendment to the proofs of death was received by the defendant less than ninety days prior to the commence'ment of the action. The original proofs of death had, however, been received by the defendant nearly seven mouths prior to the commencement of the action. Certaiñly every amendment to the proofs of death should not operate as an extension of the time of payment or the commencement of the action. The original proofs of death contained a statement in a physician’s affidavit in answer to a question as to the direct cause of death: “Gunshot wound in heart. Oase of suicide,” and also a statement of the plaintiff that the insured “was killed on January 15, 1905, by shooting himself in the heart, according to verdict of coroner’s jury.” The circumstances under which the body was found preclude any personal knowledge on the part of the plaintiff as to the manner in which he came to his death. The amendment was to the effect that the plaintiff made such original proofs without fully “comprehending or understanding the meaning and import of the same,” and that the statement above quoted was based upon rumors and current talk among citizens. It has been held in Mew York and sanctioned by text-writers that a second proof of loss does not nullify a prior proof returned by the company, but that such proofs are'to be taken together, as supplying each other’s defects, and if, combined, they answer the requirements of the policy, the law is satisfied. Brown v. Hartford F. Ins. Co. 52 Hun, 260, 5 N. Y. Supp. 230; 2 May, Ins. (4th ed.) § 460. See, also, 19 Am. & Eng. Ency. of Law (2d ed.) 103.

2. Counsel also contends that by reason of such proofs of loss the court should have granted the defendant’s motion for a nonsuit. Such proofs, at most, were mere prima facie evidence of the facts therein stated. This court held long ago, in an opinion by Chief Justice Ryan:

“While the Code allows defenses in abatement and bar to be pleaded in one answer, it does not permit the same defense to be pleaded in abatement and in bar, and where that is done the plea in abatement is a nullity.” Hooker v. Greene, 50 Wis. 271, 6 N. W. 816.

Upon the authority of that case it was subsequently held by this court:

“While a' right to plead in abatement may be waived by pleading to the merits, yet it does not follow that a plea to the merits is to be deemed waived or withdrawn by subsequently filing a plea in abátement. Dilatory pleas are not favored in the law, whereas pleas in bar and to the merits are favored.” Baker v. State, 88 Wis. 140, 148; 59 N. W. 570. See Crowns v. Forest L. Co. 99 Wis. 103, 105, 74 N. W. 546.

There was no error in refusing to grant a nonsuit or to dismiss the action.

3. Error is assigned because the court refused to set aside the verdict and grant a new trial. The claim is that there is •no evidence in the record to support the verdict. That ver•dict is to the effect that the death of the deceased was not naused by suicide, whether sane or insane. That was the only question submitted to the jury. As frankly stated in the brief of counsel for the defendant: “The defense set up was suicide of the insured.” That is the only defense on the merits' alleged in the answer. The question whether the deceased came to his death in some other way than by suicide was not in issue and not determined. The finding is, in effect, that the deceased did not intentionally or designedly destroy his own life. The evidence as to the circumstances under which the body was found are undisputed. The death occurred on Sunday, January 15, 1905. The deceased was the street commissioner of the city of Appleton. On the •evening before the death he was at his office in the basement ■of the city hall and gave directions to those under him for the work of the then coming week. In the forenoon of the fatal day, at his home and'in the presence of his wife and children, he was engaged in cleaning a revolver. On objection being made, be put tbe revolver in its usual place in bis wife’s dresser. He was financial secretary of St. Paul’s Lutheran church, and as such was to be present at a meeting of the trustees of the church at 2 o’clock that afternoon. Shortly after the noon hour he left his home with the church book, telling his family that he was going to a church meeting that afternoon. After he left, his wife saw nothing of the revolver, but knew it was gone. She saw nothing more •of him that day. When he failed to attend the church meeting the witness Dittman was requested to look him up. He went to a saloon, and, not finding him .there, telephoned his wife as to his whereabouts, and was informed by her that he had gone to the church meeting. Dittman then went to the office of the deceased, but failed to find him there. He then went to the rear door of Hinton’s saloon, where he found the •deceased, and asked him if he did not know he was to be at the church meeting, and the deceased said “Yes,” and took ■out his watch, and said it was half past 2, and he would be there in. a minute. Dittman then told him that he would telephone his wife that he had found him, and did so. The •deceased then left the saloon with the church book, but did not go to the church meeting. About 6 o’clock in the evening ■the brother of the deceased, John, was called up by the plaintiff by telephone, and told that the deceased was not at the •church meeting, and asked whether he had seen him, and requested John to make search for her husband. About 7 •o’clock in the evening John and an employee under the de•ceased went in search for him. Finally they went to the city hall, found the outside basement door locked, then, after obtaining a key at the police station, unlocked the outside door, and then unlocked the door to the tool, room, adjoining the •office of the deceased, with a wooden partition between them, having an opening along the top, called “airholes” in the testimony» They then got some boxes, lighted a match and the lantern, and looked over the partition through the “air-Roles,” and saw the deceased lying on the lounge without a hack to it, with his head toward the south. John then crawled over the partition, through the “airhole,” and so into the office. The door of the office was locked, and there was no key in the door. He tried to find the keys to the office door in deceased’s pants pocket, hut failed. Then they tried to-break the door in, but could not do so. John then made another effort to find the keys, and finally found them in the right-side coat pocket of the deceased, and unlocked the door, and people came in. When they first saw him on the lounge-a revolver was on the floor by the side of the lounge and about eighteen inches from the knee of the deceased, who-was lying flat on his back with his head inclined to the east and his hand on his stomach. One leg was straight and one hung over a little. His eyes were closed. He appeared to be asleep. There were three windows to the office, and they extended down below the surface of the ground and within three feet of the floor. There was a handle on the inside, of' the sash to raise the windows. The curtains on the windows, were pulled clear down. The clothing of the deceased lay smooth and not ruffled. The overcoat of the deceased was found hanging on a nail in his office, and his hat was also-hanging on a nail. Everything in his office was in order. One of the books of the St. Paul’s church was in the office at the time. The deceased was right-handed, and his right side was toward the wall, and the revolver was on the floor on the left of the body. The revolver was picked up by Policeman. Baker soon after the body was found, and by him turned over to the chief of police soon after, and on examination the-chief of police found that there were two empty shells in the revolver and three loaded ones. There was no evidence of powder marks on his clothing. On reaching the office and finding the dead man Policeman Baker telephoned Dr. Ells-worth the fact and requested him to come to the office immediately, and he did, and. got there a little after 9 o’clock, and. found three bullet holes through the shirt of the deceased, as-he was lying on the sofa with his ordinary clothes on, overcoat and hat removed. His coat was on, and his vest was open full length, unbuttoned. His shirt, pants, and shoes were all on. The opening in the vest was sufficient to enable him to see two openings, as deceased lay there on the lounge, one just above the left nipple, another about in the median line, and after the removal of the vefet he found another opening nearly over the collar bone. After opening up the clothing of the deceased the doctor found one bullet hole about an inch above the left nipple on the left side of the breast, being the point of entrance, and it pointed from the left to the right at about an angle of forty-five degrees, taking a course toward the heart and presumed to enter the heart; another just about the median line, the middle of the breast bone, being the point of entrance; and another out over the collar'bone, being the point of exit, because it was larger.

It was Dr. Ellsworth’s affidavit tha#was contained in the proofs of loss; and, on being questioned in relation to the statement there made, he testified to the effect that at the coroner’s inquest the questions and answers all tended’ towards suicide; that he did not know whether it was suicide or not, but such was the presumption indulged from start to finish; that in answer to a hypothetical question based upon the facts stated he answered that in his opinion it was impossible for the deceased to have shot himself. In answer to another question he said perhaps it was possible, but it was a questionable ease; that, as he stated before the coroner’s inquest, it was'never done with the right hand, and if done at all it was done with the left hand.

The physical facts, of which the foregoing is a general outline, are undisputed. The whereabouts and conduct of the deceased from about half past 2 o’clock on that Sunday afternoon to the time his body was found in the evening are wholly unaccounted for and left to conjecture. Can it be said, as a matter of law, that the inferences or conclusions to be drawn from such facts and circumstances are so clear and unambiguous that reasonable men, unaffected by bias or prejudice, would agree that the deceased intentionally shot himself? If that is not so, the verdict of the jury is sustained by the evidence, and the trial court properly refused to set it aside and grant a new trial. The law on that subject has so often and so recently been declared by this court as not<to require repetition here. Tiborsky v. C., M. & St. P. R. Co. 124 Wis. 243, 246, 247, 102 N. W. 549, and cases there cited; Roedler v. C., M. & St. P. R. Co. 129 Wis. 270, 109 N. W. 88, 91; Kaples v. Orth, 61 Wis. 531, 533, 535, 21 N. W. 633. In support of the verdict the evidence is, of course, to be considered in the most favorable light it will legitimately bear. Id. The facts in the case axe very different from those in cases relied upon by counsel. Agen v. Metropolitan L. Ins. Co. 105 Wis. 217, 80 N. W. 1020; Hart v. Fraternal Alliance, 108 Wis. 490, 84 N. W. 851; Voelkel v. Supreme Tent K. M. W. 116 Wis. 202, 92 N. W. 1104. We must hold that the verdict is sustained by the evidence.

4. In charging the jury upon the question whether the deceased intentionally killed himself the court said:

“The burden of proof is upon the defendant to establish by a fair preponderance of the evidence that the cause of death was suicide. ... As applied to the facts in this case, it devolved upon the defendant to satisfy you by a preponderance of the evidence that the cause of death was suicide. It does not devolve upon the plaintiff to prove a negative— that is, to prove that it was not suicide, — but the burden of proving it is on the defendant.”

And again the court said to the jury:

The “presumption of law is against the commission of suicide, and the defendant must first overcome this presumption in law against suicide, and establish the fact of suicide by a preponderance of evidence, and in the absence of such proof you must answer the question submitted to you by ‘No;’ . . . but this presumption may be rebutted by proof, and . . . the burden is on the defendant to rebut that presumption and satisfy you by the evidence that the cause of •death was suicide.”

Counsel for the defendant admits the correctness of such portions of the charge as propositions of law. They are certainly in harmony with the rulings of this court. Agen v. Metropolitan L. Ins. Co., supra; Hart v. Fraternal Alliance, supra; Voelkel v. Supreme Tent K. M. W., supra. But counsel contend that as neither the original proofs of death nor the amendments thereof made nearly six months after-wards denied the fact of suicide, nor withdrew the statement of suicide therein made, the presumption of suicide arising therefrom was “stronger than the other general presumption against suicide,” and hence shifted the burden of proof from the defendant to the plaintiff. Such proofs were at most prima facie evidence of the facts therein stated to be considered by the jury, hut that did not require the court to take from the jury the presumption against suicide. Id. The defendant requested no instruction as to the proofs of death being considered as evidence in the case. The determination of the question whether the deceased intentionally killed himself was for the jury under instructions of the court.

5. We perceive no error in excluding from the consideration of the jury a certified copy of the certificate of the death of the deceased, made by the witness Dr. Ellsworth and health officer, and filed in the register’s office as required by secs. 1024, 1024a, Stats. 1898. It was not the best evidence and was not offered by way of impeachment, but as original testimony, and was clearly incompetent.

6. The defendant claims that the court improperly excluded testimony as to the amount of money collected by the deceased as financial secretary of the church and his arrears for moneys so collected. In excluding such testimony the court ruled that it was competent for the defendant to show that the deceased was short in his accounts with the church, but that the defendant could not prove by a trustee that he had made partial inquiries among members of the church and found that certain of them claimed, to have made payments to the deceased and taken receipts therefor, because the receipts themselves, which were not produced in court, were the best evidence. Obviously the testimony offered was mere hearsay. We find no error in such ruling.

By the Court. — The judgment of the circuit court is affirmed.