Bachmeyer v. Mut. Reserve Fund Life Ass'n

• Decision Date: 16 March 1894
• Parties: BACHMEYER v. MUTUAL RESERVE FUND LIFE ASS'N.
• Court: Wisconsin Supreme Court

87 Wis. 325

58 N.W. 399

BACHMEYER

v.MUTUAL RESERVE FUND LIFE ASS'N.

Supreme Court of Wisconsin.

March 16, 1894.

Appeal from circuit court, Milwaukee county; D. H. Johnson, Judge.

Action by Maria Bachmeyer against the Mutual Reserve Fund Life Association on a policy of insurance. Judgment for plaintiff. Defendant appeals. Reversed.

For former appeal, see 52 N. W. 101.

The other facts fully appear in the following statement by PINNEY, J.:

This is an action upon a contract between the defendant and Ludwig Bachmeyer, whereby he insured his life in the sum of $2,000, upon the conditions therein stated, for the use and benefit of the plaintiff, who was his wife. The case was before this court, in 82 Wis. 255, 52 N. W. 101, where the principal facts are stated, and a judgment in favor of the respondent was reversed, and a new trial awarded, upon the grounds there stated. The policy of insurance contains the following stipulation: “Death of a member by his own hand, whether voluntary or involuntary, sane or insane at the time, is not a risk assumed by the association in this contract.” The evidence tends to show that the assured, at the time of his death, was 51 years of age, and that the plaintiff, to whom he had been married 25 years before, was about 10 years older than he. He was a carpenter, and had worked steadily for about three years and a half in the railroad shops. Seven children had been born to the parties, all of whom died in infancy. They had adopted a little girl named Clara, when she was about two years old, who, at the time of the death of the assured, was between 15 and 16 years of age. He always gave his wife the money when he got his pay, and she kept charge of it. He was a nervous man, and excitable. and had had palpitation of the heart the year before he died, and sometimes took quinine for his nerves. His nervousness increased, and he became irritable. The parties had trouble two or three months before he died, and it kept increasing. He wanted to marry their adopted daughter, but she refused all his advances. He compelled the plaintiff to go to an attorney, and make application for a divorce, so that he could marry the girl; and he wanted her to go and live with her son by a former husband, at Pittsville, Wis. He had previously made indecent proposals to the girl while the plaintiff was absent at church, and on her return she found that Clara had locked herself in her bedroom. “She came out of the bedroom. He was sitting in a chair reading the paper. She told me what had occurred. He didn't say a word. I sent her away then. After she had left the house we didn't speak much together. I was living there with him.” The evidence of the plaintiff shows that he then required her to go to Mr. Roehr about the divorce; that the assured wanted her to go, and leave everything in his hands; that the property was bought with her money, but he did not want her to have anything; that he wanted her to get a divorce, and not allow her even the things in the house; that she “should go as she stood.” The action for divorce, for some reason, was delayed. She was willing to have a divorce if he would do as she wanted about the property; and he had not yet consented, but wanted the court to decide that, and this was assented to. They did not talk much together about this time. She sent Clara away about two blocks distant, for her own protection, because she did not want her exposed to any more such attacks. It appeared that during his entire life the assured would get greatly excited at times, and be violent, but that he would soon get over it; that he acted sometimes as if he was not as other folks. On the date of the death of the assured, in the morning, he said he didn't feel good, and asked plaintiff if she had some quinine, and she went and looked, and the box was empty, and she told him there was none; that he took his dinner basket, and went to the shop. About half past 8 he came home, saying he didn't feel well enough to work. Then said he was going down town, to get himself a suit of light clothes, and some tools that he needed. He was as usual that morning, nothing extra, but he felt depressed,--kind of headache, or something. That he asked plaintiff for money, and she gave him $10, and she next saw him about half past 2, or between 1 and 2, when he came home. He was perspiring profusely, and complained of the great heat of the day,--one of the hottest of the season. Stated he didn't want any dinner. Being asked if he had drank some, said he drank a glass of beer going down, and one coming up, but it didn't taste good. Wanted to change his clothes. First took a glass, and went into the buttery, put a little rum and sugar in it, and went to the pump in the yard, and he drank it. The water wasn't good, and when he drank it he put a few drops of rum in it out of the bottle. Went to the outhouse and came in. He had brought home a coat and vest, and a little anvil costing only 25 cents, and had bought a little ginger root. He used to keep it for his stomach. And he handed the plaintiff the change, and showed her the goods. He appeared as usual, only he perspired so. She helped him take off his clothes and put on dry ones, and advised him to lie down on the bed. He did so. That was a little after 2 o'clock. She sat at the table, where she could see him plain, his whole length. He laid on his back, and very still; didn't move any. “After he laid down maybe ten minutes or so, he asked me if my son had written lately,--my son by the first marriage. I told him ‘No,’ and then he asked me if Clara was coming back to the house, and I told him, ‘No.’ He clasped his hands, and said, ‘Oh, I am an unhappy man,’ and folded his hands. He then went to sleep, and never said another word. I didn't see any movement. I remained and worked about two hours, and he slept.” He continued to sleep while plaintiff was absent a short time to the grocer's, during which a neighbor sat with him. When she returned she heard a kind of rattling noise, hard breathing, which continued, and, becoming alarmed, she called in a physician, Dr. Boorse, about 6 o'clock, who continued with him until his death, about a quarter past 12 that night. In relation to the statement contained in the proofs as to the cause of his death, she said: “I repeated what the doctors had spoken. I did not know the cause,--temporary insanity caused by morphine. That is what was their opinion,--that he had died from morphine poison.” There was an inquest held by the coroner. The finding was that the assured came to his death by taking opium poison during a fit of temporary insanity. The plaintiff testified that she did not have any talk with either Dr. Kissling or Dr. Boorse about her husband's mental condition. That there was nothing unpleasant occurred that day at home. There was no excitement. That at the time the proofs were made and signed by her she had no personal knowledge as to the particular cause of his death, and did not know of his taking opium or morphine; did not personally know that he had taken it. That he was accustomed to the use of quinine, and kept it in the house, but never had morphine, or anything of the kind, in or about it, and never took it, to her knowledge. That he did not bring any quinine home that day. That in answering the question in regard to the cause of death she relied on the doctors' opinion. They said they thought it was morphine. That she had no knowledge at all as to his mental condition at the time he took morphine, if he took it; did not know anything about it. That she made the statement in regard to the remote cause of death being temporary insanity, because the doctors said it. Heard them speak. They claimed he must have been insane because he took morphine. She denied that he was insane that day, or that he was ever insane. She testified that she depended on Mr. Roehr to make the proofs, which were made about a month after her husband's death. That in swearing to them she understood that she was stating the truth at the time, and that she did not at the trial know anything more about the facts and circumstances surrounding the death of her husband than at the time the proofs were made out. Had not learned any new facts since then. It appeared from medical testimony that there is but little difference in the appearance of morphine and quinine; that only an expert would be able to tell the difference; that morphine is dispensed in the form of pills, liquid, or powder. Gustav Kaiser testified that the insured was in his store the 28th of June,--about three weeks prior to his death. That he did not notice anything peculiar about him. That he did not show any signs of being out of his mind. Christian Oswald testified to his acquaintance with the assured. That he used to visit witness as often as once in three or four weeks. Last saw him two weeks before he died, and did not notice anything about his condition or manner that was strange at the time. Dr. Kissling also testified to visiting the assured on the evening of his death. That the statement in the proofs of death, signed by him, that he died of morphine poisoning, while temporarily insane, was from information. Could not say who informed him. Remembered that the plaintiff told him the assured had queer actions lately, and was very excited; did things that he had never done before, acting as a person that was not all right in his head. That so far as the insanity was concerned, the statement was based on facts she related to him. That she was very much excited at the time. Dr. Boorse testified to his treatment of the assured on the occasion in question, and that the plaintiff stated to him that he had been acting strange for some time in regard to a certain young lady who was stopping at the house. That he did not think he made any statements at all to plaintiff in relation to whether Bachmeyer was or was not temporarily insane, as the cause of his...