Sutcliffe v. Iowa State Traveling Men's Ass'n

• Decision Date: 27 January 1903
• Citation: 93 N.W. 90,119 Iowa 220
• Parties: NANIE SUTCLIFFE, Appellant, v. THE IOWA STATE TRAVELING MEN'S ASSOCIATION
• Court: Iowa Supreme Court

93 N.W. 90

119 Iowa 220

NANIE SUTCLIFFE, Appellant, v. THE IOWA STATE TRAVELING MEN'S ASSOCIATION

Supreme Court of Iowa, Des Moines

January 27, 1903

Appeal from Polk District Court.--HON. C. A. BISHOP, Judge.

ACTION in equity to recover on a certificate of insurance. The only defense interposed was that death was by suicide. Decree for defendant, from which plaintiff appeals.

Affirmed.

John C King and Ryan, Ryan & Ryan for appellant.

Wright Hewitt & Wright for appellee.

LADD J. BISHOP, C. J., took no part.

OPINION

LADD, J.

Frank A. Sutcliffe shot himself in the left side between the ninth and tenth intercostal cartilages and about four inches from the median line, shortly after midnight, February 27, 1899, and died from the effects of the wound so inflicted the next day. The ball lodged in the left side of the spinal column, about two inches above the anus,--eleven inches from the point of entrance into the body. His vest, shirt, and skin were powder stained, and powder had entered somewhat into the wound. He was at the time a member of the defendant association in good standing, and it is conceded that, unless he purposely took his own life, the plaintiff, as the beneficiary named in the certificate of insurance, is entitled to recover. Our only inquiry, then, is whether the defendant has established by a preponderance of evidence that death was by suicide. He had been married in December previous, and, with his wife, was living with his parents in Chicago, Ill. His wife had but recently obtained a divorce from a former husband, who seems to have found his way to the penitentiary, though an improper intimacy had existed between them for more than two years. He was a commercial traveler, had returned to the city the morning of the 26th, and had spent the afternoon and evening with his wife about the city. According to her story, they had visited several saloons, drinking together, he imbibing two or three quarts of beer and a couple glasses of whisky, though in her affidavit, made near the time, she declared he took no more than "two beers." She also testified that they had talked of disagreeable things, and that he had accused her of infidelity and want of affection. Such evidence, as it was of communications between husband and wife, is prohibited by statute. Hertrich v. Hertrich, 114 Iowa 643, 87 N.W. 689.

Of their return she testified that: "My husband opened the door. We went in the house. Went upstairs together, and I went in my room, and he came in directly behind me, removed his overcoat, and hung it up just inside of our room door, and hung up my umbrella with his coat. He turned round, and walked out of the room. Just outside of the room door my trunk sat. On that was his grip. He walked to his grip, and I was undressing in the room. As he stepped back into the room, I immediately turned round, and he just put the revolver to the left side, pulled the trigger, and I turned so quickly that he fell in my arms, and I laid him on the bed." That immediately his mother came into the room, followed a moment later by a sister, and accused her of having killed her son. That thereupon she inquired of deceased, "Who did it?" to which he responded, "I did it myself." That the mother then turned to him, and asked, "Who did this?" to which he answered, "I did it myself." That she again inquired, "Are you sure you did it, or did that woman do it?" to which he responded. "I did it myself, and don't blame my wife." Appellant insists that this testimony also should be excluded because of a communication between a husband and wife. We think the conversation had at the time a part of the res gestae, and what was said by the mother, wife and deceased in the nature of exclamations explanatory of what had occurred. State v. Middleham, 62 Iowa 150, 17 N.W. 446; Wright v. Wright, 114 Iowa 748, 87 N.W. 709; Alsever v. Railroad Co., 115 Iowa 338. They were spontaneous utterances, springing out of the transaction itself; verbal acts, as it were, rather than communications such as prohibited by statute.

The credibility of this witness is seriously shaken, if not destroyed, by her affidavits out of court, and repeated oral statement to the effect that she was not looking at deceased at the time the revolver was discharged, but turned as she heard the report, and caught her husband when falling toward her, and that she believed the shooting accidental. Besides, she had been a prostitute since his death. Were she not strongly corroborated in the essential issue as to self-destruction, her testimony would be entitled to no consideration. A barber on the first floor heard the report, and notified the police. He then went to the scene, and inquired of deceased who did it, and was answered that the latter did. The police sargent and a patrolman soon arrived, made the same inquiry, and received a like response. They then asked why he did it, and were told that it was none of their business. This evidence was objected to, first, because of the incompetency of declarations of deceased against the beneficiary. The latter claims in her own right, and not as representative of or through the assured. Seiler v. Association, 105 Iowa 87, 74 N.W. 941; Rawls v. Insurance Co., 27 N.Y. 282 (84 Am. Dec. 280). This being true, the beneficiary is not bound by admissions of the assured, unless a part of the res gestae. Fitch v. Insurance Co., 59 N.Y. 557 (17 Am. Rep. 372). But on this last ground we think the evidence rightly received. The conversations were so closely connected with the transaction in point of time and sequence that they should be treated as a part of it. Alsever v. Railway Co., supra; Harriman v. Stowe, 57 Mo. 93; Insurance Co. v. Mosley, 75 U.S. 397, 8 Wall. 397 (19 L.Ed. 437); Com. v. McPike, 3 Cush. 181 (50 Am. Dec. 727).

Appellant suggests that they should be rejected because of the presence of the physician treating, deceased. The communications...