Wilkinson v. National Life Assn.

211 N.W. 238, 203 Iowa 960

Opinions

MORLING, J.

I. The policy is dated October 25, 1919. It provides that if, within two years from date, 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 by the insured on account of the policy. The insured died frem gunshot wound on August 26, 1921. The court, holding that the evidence conclusively showed suicide, directed a verdict for defendant. The principal question argued is whether the plaintiff was entitled to go to the jury.

The law of the case has been so recently and so fully discussed by this court that we need to refer to but two or three settled principles. Michalek v. Modern Brotherhood, 179 Iowa 33; Tomlinson v. Sovereign Camp of W. of W., 160 Iowa 472, and cases referred to; Green v. New York Life Ins. Co., 192 Iowa 32. It was not for the trial court, nor is it for this court, to determine facts or draw inferences where reasonable minds might come to different conclusions. The defendant had the burden of proof. No witness saw the deceased at or near the time or place of the tragedy. The evidence is entirely circumstantial. The presumption is against suicide. To overcome this presumption by circumstantial evidence, the defendant must show the existence of such circumstances and conditions as to leave room for no other reasonable hypothesis than that of suicide. In other words, the evidence must be such that all reasonable minds must say that the presumption has been overcome, suicide has been proved, and any hypothesis or theory inconsistent with suicide excluded.

The deceased was about 44 years of age at the time of his death, a tenant farmer, married. A former wife had died, by whom deceased had had seven children, aged from three to eighteen, who were living with him. About four months before his death, he married a widow, who had five children, three of whom were also living on the farm. After his remarriage, his second wife was taken to the hospital, and underwent a serious operation. She returned the Sunday before the Friday on which the deceased died, but was in bed. There was no indication of any family trouble. There was evidence to the following effect: The day before Ms death, the insured and his wife talked over the matter of moving to a farm which he had in Minnesota, and renting some more land, which he said he intended to do. The talk was that he would take his stock to Minnesota. The evening before his death, the insured asked a repair man to repair a gas.engine, and said he would take it into town the next morning. Deceased did send it in. The second day before his death, insured declined to sell horses to a buyer, stating that he had none to spare, and he figured on going to Minnesota. He also talked, during this time, about doing road work with his hoys, in addition to farming in Minnesota. He was a good farmer, and apparently normal. One witness noticed, about a week before he died, a change in his demeanor; that he had the appearance of being a little downhearted. He had paid out $5,000 on his Minnesota farm. Before his second marriage, he had expressed fear that he was going to lose his Minnesota land, but he had kept up his payments, though the land was probably not worth as much as there ivas against it. He was much in debt otherwise.

The foregoing evidence was proper for the consideration of the jury; but the- love of life, adherence to it under most discouraging circumstances, love of family, and sense of cowardice in leaving wife and little children to fight life’s battles alone, are so strong', and the impossibility of intellectually weighing motives and emotions and of deciding that the life of another is not worth living are so great, that the court, for the purpose of the question before us, can give very little weight to such evidence of motive as this record presents, particularly in this case, when inference of absence of design is as strong as inference of motive for suicide. The question comes down to the one whether the physical facts are such as to conclusively overcome the pre*sumption against suicide and the reasonable possibility of accident.

So far as the evidence shows, the insured was last seen in life when he went into the bedroom and called his daughter, who was sleeping with his wife. At what hour this was, or at what hour his body was found, except that it seems to have been before 9 o ’clock in the morning, does not appear. He had frequently engaged in shooting rats that were troubling the chickens, and crows that were thick about the place. To the west and north of the house was a cornfield, separated from the other land by a fence. There was a grove north of the house, and a small field north of that, and the cornfield was west of the small field. Who discovered the body, and what its then position was, do not appear. A doctor and neighbors were called about 9 o’clock. When they arrived, “the body was found about four rods in the cornfield.” One witness says, head to the south, feet to the north, directly north and south. Another says, head a little bit to the southwest. Another says, “The head was a little bit southwest and northeast, — most east and west.” Whether it had been moved between the times referred to by these witnesses does not appear. A shotgun was lying six‘feet north or a little northeast of the feet, muzzle pointing toward the body. At the inquest, there was in the gun one shell that had been exploded. •' Witness testified, “I don’t remember if the others were exploded. ’ ’ When the doctor opened the clothing, there was no blood on the outside; but when they picked up the body, blood rushed out, indicating internal hemorrhage. The doctor did not testify to the location of the wound, or say what vital organs, if any, were penetrated. So far as shown, the wound was not probed, nor was an autopsy performed. The undertaker testified that there was a hole in the breast, not very much larger than the end of a shotgun; that the back “was smooth and nice, except in feeling over the back you could feel a couple of shot that had not come through the skin. * * * there was no hole through the skin. * # * The shot were apparently in the middle of the back, or below the hole in the front.” A neighboring farmer said that he “found a hole right in there, pretty close to the heart, as near as I could judge.” The hole was about the size of a quarter or half dollar, — as one says, “pretty round.” The evidence is that the cloth around the hole was slightly burned. A witness sdid that he noticed powder marks on the bib of the overalls. The undertaker expressed the opinion that, “had the gun been real close to the body, there would have been more evidence of powder marks than I found. It was my opinion that the gun was pretty close to the body, but I couldn’t say how close.” As to the place where the body was found, a witness said that the corn was not very thick there ; that “there would be a ridge, and then there would be a kind of a hollow. Every other step, you hit a ridge.” There was no other evidence concerning the condition of the corn or ground, other than that the' date was August 26th. No evidence as to whether the ground was slippery. After the body was taken to the house, a witness found, “lying close to where .the body was, a cornstalk, with the end cut off with a sharp knife.” The gun was a single-barreled pump gun, having a hammer. The plaintiff offered evidence apparently for the purpose of showing that the gun, sometime afterward, while in the same condition, was discharged without any apparent cause; but no definite offer was made, and the questions were too vague to be permissible. No suggestion is made by either party, in evidence or argument, as to the possibility of homicide. The theory of the defendant upon the physical facts is that the deceased either held the gun with the butt higher than the muzzle and discharged it, probably with a piece of cornstalk held in one hand, or that he sat upon the ground, his legs extended, and his body leaning forward, and placed the muzzle over his heart, and pulled the trigger, either with a piece of cornstalk or with the tóe of his shoe, and fell backward where he was found, and the recoil of the gun threw it from him to the position where it was found on the ground. Of course, if the evidence is conclusive that one or the other of these alternative methods must have been adopted, the impossibility of determining which, would not prevent the direction of a verdict; but the defendant’s hypothesis, as it seems to us, must be based upon what “probably” occurred, and is only a hypoth-' esis, — an inference. There was evidence that from the end’ of the gun to the trigger was about three feet, and that the gun would weigh seven or eight pounds. There is, of course, no' evidence as to how the deceased carried the gun. We know, as matter of general knowledge, that guns are carried in various positions, sometimes over one shoulder, sometimes over another, or over the back, or on or under an arm, sometimes stock forward, sometimes barrel forward. That two shot were lodged under the skin somewhat lower than the wound at entrance may indicate little or nothing. The charge of shot would doubtless spread, on entering the body. Some would probably be deflected by the bony, or even the soft, tissue. There is no evidence as to the course of the main charge of shot and wads. The distance of the gun from the body at the instant of discharge is a matter of argument and conjecture. The direction and position of the gun at that instant must also be said, on this record, to be purely a matter of conjecture. There is in the record no evidence whatever as to the age or condition of the gun, particularly whether the trigger was worn; whether a “hair” trigger; how it was adjusted and protected; whether it was in order, or susceptible or not to apparently causeless firing. The kick of a gun throws the barrel up; and it cannot be said, we think, to be conclusively shown that, if deceased fired the gun with the muzzle pointed toward him, particularly if he was sitting on the ground, the recoil would propel it six feet beyond his feet, even though a .doctor testifies that he has had guns “jump farther than, that from” his hands. When the butt strikes the ground in the recoil, the barrel would not necessarily settle in the line in which it was when discharged. If deceased was holding the gun near or against his body, with the purpose of discharging the load into his body, it might be inferred that he would necessarily have a tight grip upon the barrel at the time of the discharge. One of the evidences of the firing of a gun by the holder, killing himself, is the strong grip of his hands upon it. 1 Taylor’s Medical Jurisprudence (7th Ed.) 550. We think it cannot be said, upon this record, by the court that the grip which the deceased, if he fired the gun, must have had upon it at the time of discharging it, ivas necessarily relaxed at or before the moment of recoil. We do not find in the record evidence that conclusively dispels the possibility that the deceased might not, for instance, have been carrying the gun over his left shoulder, barrel forward, and that, in the course of its being swung over, stock upwardly, either by accident or in the course of stumbling or slipping and recovering, or in some other method which it is the business of the defendant, before it is entitled to a directed verdict, to exclude, the gun, at the instant of its being pointed toward his body, might not have been discharged. Shooting accidents do most unexplainably occur. We cannot determine from the record what position the gun would have to be in, nor that it would not be discharged either from the motion of the gun or slight contact with the standing com. The cornstalk that was cut apparently was not noticed until after the body had been taken away. It is altogether a matter of inference as to who cut it, when it was cut, where it actually ivas in relation to the position of the body, or whether deceased cut it, had it, or used it. It must be said, we think, that the record as a whole leaves the case in a very vague condition, and that, while reasonable minds may find that the defendant has proved suicide, this record is insufficient to compel all reasonable minds to come to that conclusion. The court erred in not submitting the case to the jury..

II. The verdict of the coroner’s jury that the insured ‘ ‘ died from the effects of a load of number five shot fired from a 12-gauge shotgun, same entering his body just below nipple and striking the heart, the wound being self-inflicted,” and the coroner’s inquisition, of which this was a part, were received m evidence Over appei]a31^’g objection. In Metzradt v. Modern Brotherhood, 112 Iowa 522, such a verdict offered by defendant was received. The plaintiff recovered judgment. On appeal by defendant, the court said that plaintiff’s counsel did not question the admissibility of the verdict, and added:

“ * * * we think it is competent evidence on such an issue as this. As to its effect, the defendant only claims that it is primafaeie evidence of death by suicide. * * * Giving to this verdict the effect claimed for it, and considering it in the light of the circumstances attending the death of the assured, we still think it is fully overcome by other evidence.”

The judgment was affirmed. It will be seen, therefore, that the question of admissibility over appellant’s objection was not in the case.

In Mittelstadt v. Modern Woodmen, 143 Iowa 186, no objection to the admissibility of the coroner’s verdict was made, and it was not contended on appeal that it was inadmissible. The opinion states:

“We have no occasion, in view, of this record, to consider the admissibility of the testimony. ’ ’

In Dufree v. Wabash R. Co., 155 Iowa 544, a personal injury case, it is said :

“We have held that a coroner’s verdict is competent evidence for some purposes” (citing the Metzradt case).

The offer there included papers not before the court. The-exclusion of the verdict was held not prejudicial.

In Tomlinson v. Sovereign Camp of W. of W., 160 Iowa 472; there was a judgment for plaintiff and appeal by defendant. The court there said:

“The objection-made .to the coroner’s verdict must have been interposed by plaintiff’s counsel, although the record is apparently to the contrary. This court has heretofore held such testimony admissible. Metzradt v. Brotherhood, 112 Iowa 522. And, whatever may be thought of this rule by the court as now constituted, .the defendant suffered no prejudice from the admission thereof,, and the objection which was interposed came from plaintiff’s counsel, and not from defendant.”

In Michalek v. Modern Brotherhood, 179 Iowa 33, it is said:

‘ ‘ This court has sustained the admissibility in such cases of the verdict of a coroner’s jury, — an extreme holding, to the propriety .of which the writer does not assent; but it has never yet taken the step beyond that limit which is required to give admissibility in evidence of such officer’s opinion, or of his report of 'such opinion to an administrative board or commission having no interest therein or official duty in connection with the death of "the deceased except as an item in the compilation of a table of vital statistics. In this ease there was no inquest, no coroner’s jury, and no pretense of a verdict of such a body.”

These cases are the only cases which have come to our attention where the question has been raised in. this court. In none of them was the question-of admissibility over appellant’s objection passed upon. The coroner is required to hold an inquest upon the dead bodies of such persons only as are supposed to have died by unlawful means, and .in such cases as are required by law. Code of 1897, Section 515 (Code of 1924, Section 5200). The'coroner’s jury is required to return “when, how, by what person, means, weapon, or accident he [deceased] came to his death, and whether feloniously.” Code of 1897, Section 521 (Code of 1924, Section 5208). The proceedings have no refer¿nce to and are not intended for the ascertainment of civil rights or liabilities. The parties interested in such rights or liabilities are not before the coroner’s jury, at least by virtue of their interests. Such interests are not before the coroner’s jury for determination; nor are the parties to them, as such, before the court, or heard. The finding in most cases must be, as to such parties, merely an opinion and hearsay. Certainly it is not, as between them, a judicial determination. The coroner has not the means, nor has he, as to civil rights involved, the knowledge, essential to a judicial inquiry. The proceedings' are not eon- ducted for the purpose of determining civil rights, nor in a manner adapted to the ascertainment of the facts determining such rights. The proceedings are informally, and often carelessly, conducted. In this case the verdict could have been no other than a mere ex-parte conclusion by the men who happened to constitute the coroner’s jury, and founded on hearsay, so far as the parties to this controversy are concerned. The great weight of authority is opposed to the admissibility of the proceedings on the inquest and verdict, as evidence of the cause of death in a later civil proceeding. We are of the opinion that the reception of the proceedings in the inquest and the verdict was error. Groeschner v. Gund Brewing Co., 173 Wis. 366 (181 N. W. 212); Wasey v. Travelers’ Ins. Co., 126 Mich. 119 (85 N. W. 459); Cox v. Royal Tribe, 42 Ore. 365 (71 Pac. 73, 60 L. R. A. 620, 95 Am. St. 752); Goldschmidt v. Mutual Life Ins. Co., 102 N. Y. 486 (7 N. E. 408); Hollister v. Cordero, 76 Cal. 649 (18 Pac. 855); 37 Corpus Juris 633; 13 Corpus. Juris 1256, and eases collated in these authorities.

The expressions in our eases referred to, to the effect that the inquest or verdict is admissible, do not correctly state the law, and are overruled.

III. Other exceptions shown by the record not governed by the foregoing discussion were either not so presented below or are not so presented here as to be entitled to consideration.

The judgment is — Reversed.

Evans, Stevens, Faville, and Vermilion, JJ., concur. De Grape, C. J., dissents.