Bosler v. Modern Woodmen of America

• Decision Date: 19 December 1916
• Docket Number: 18662
• Parties: IDA MULVANEY BOSLER, APPELLEE, v. MODERN WOODMEN OF AMERICA, APPELLANT
• Court: Nebraska Supreme Court

160 N.W. 966

100 Neb. 570

IDA MULVANEY BOSLER, APPELLEE, v. MODERN WOODMEN OF AMERICA, APPELLANT

No. 18662

Supreme Court of Nebraska

December 19, 1916

APPEAL from the district court for Lancaster county: P. JAMES COSGRAVE, JUDGE. Reversed.

REVERSED.

T. S Allen and Truman Plantz, for appellant.

J. A Brown, contra.

FAWCETT J. ROSE, J., dissents.

OPINION

FAWCETT, J.

Defendant is a fraternal beneficiary society, and Lawrence Mulvaney, deceased husband of plaintiff, was at the time of his death a member in good standing. On December 6, 1908, while engaged in a controversy with one James Finley, Mulvaney was shot and instantly killed by Finley. Plaintiff, as the beneficiary named in the certificate of membership of her husband, recovered judgment in the district court for Lancaster county for the full amount thereof. Defendant appeals.

The defense interposed by the defendant society is based upon the following clause in the certificate of membership: "If the member holding this certificate shall be expelled from this society, * * * or if his death shall occur in consequence of a duel, or of any violation or attempted violation of the laws of any state or territory or of the United States, * * * then this certificate shall be null and void and of no effect, and all moneys which have been paid and all rights and benefits which may have accrued on account of this certificate shall be absolutely forfeited and this certificate become null and void." It is alleged that the death of Mulvaney occurred in consequence of a violation by him of the laws of the state of Wyoming, in that on December 6, 1908, in Natrona county, Wyoming, Mulvaney committed an assault upon Finley, and Finley, while defending himself from this assault, shot and killed Mulvaney; that the assault was in violation of the laws of the state of Wyoming. Section 4957, Rev. St. 1899, then in force, provides: "Whoever, having the present ability to do so, unlawfully attempts to commit a violent injury on the person of another, is guilty of an assault and shall be fined in any sum not exceeding fifty dollars."

The evidence shows that Mulvaney was engaged in the sheep business in Wyoming, and was grazing his sheep near the North Platte river. Finley was employed by one Josendal, a sheep raiser, to move his herder's camp from place to place and to provide provisions for the herder. In the performance of his duty, he moved Josendal's camp so as to locate it near what was called the Bryan homestead, which was also located on the Platte river, and which Josendal had leased. Finley proceeded north from Alcova for a certain distance, then turned off the main road up a draw, in which it appears Mulvaney's camp was located, and about noon pitched his camp about two miles from the river, and about a mile beyond Mulvaney's camp. His outfit consisted of a sheep wagon, a supply wagon, four draft horses and a saddle horse. The sheep wagon was so constructed that the bed of the wagon projected over the wheels, so as to make it about six feet wide. It was covered with a canvass top, and had a window at the rear and a door in front. The door was about two feet wide and a little to the left of the center of the front. Near the front of the room thus created, and to the right as one entered, there was a stove, upon which the occupant cooked his meals. A bed was located across the rear of the room. In addition to the bed and stove, the wagon contained a few cooking utensils and provisions. The only eyewitness to the killing was Finley. He was called as a witness for defendant, and testified substantially as follows: On the day in question he pitched his camp about a mile from Mulvaney's camp. About half an hour after locating his camp, he saw Mulvaney, with whom he was well acquainted, approaching on horseback. At that time he (Finley) was in his camp wagon. He had started a fire in the stove in his wagon to melt ice and to prepare lunch for himself. When Mulvaney rode up, he saluted Finley, "How are you, Jim?" and Finley answered, "How are you, Mulvaney?" Mulvaney rode up close to the end of the tongue of the wagon in which Finley was standing, got off his horse, and then said to Finley: "Don't you think you are coming in pretty close?" The following questions and answers in Finley's examination explain what occurred: "Q. What did you say? A. I said, 'No; Josendal has a right to water at the Bryan homestead, and I could not very well get to water there, and if I set further down I was crowding you and Ed. Royce, and be in between you, and I thought if I got down here I would be out of the way.' He said, 'I am taking all I am going to do off from this outfit,' and said, 'I am going to give you the worst beating I have given anybody.' Q. What did he do? A. He took off his coat and gloves, and threw them on the ground. Q. What did he say? A. And started for the wagon. I said, 'I can't fight you, and I don't want any trouble, and I want you to go off and let me alone.' Q. How near did he come? A. Got up on the doubletrees; they are fastened on the wagon in front. Q. What did you say? A. I pulled my gun and I said. 'Mulvaney, don't come in here or I will shoot, sure.' Q. Did you point the gun at him? A. Yes, sir. Q. What did he do then? A. He hesitated on the doubletrees a second or so, and then started into the wagon, kind of crouching down. Q. What did you do? A. I pulled the trigger. Q. How did he appear when he was coming into the wagon? A. Well, he appeared pretty mad. Q. And were you afraid of him? A. Yes, sir. Q. Why were you afraid of him? A. Well, I am not a fighting man, and I never had a fight in my life, and I knew he was able to handle me any way he wanted to. Q. And from his appearance and conduct, you knew he was mad? A. Yes, sir. Q. And did you think he intended to do you bodily harm? A. Yes, sir. Q. You did? A. Most assuredly, he intended to. * * * Q. You had known Mulvaney for some time? A. Yes, sir; two or three years. Q. Had you ever lived with him in a sheep wagon? A. Yes, sir. Q. You may state whether or not he knew your physical condition? A. Yes, sir; he must have known it. We slept together and he could see the truss. Q. After you fired the shot, what then happened to Mulvaney as you saw? A. He still kept coming. Q. Did he fall? A. He started to fall. Q. In the wagon? A. Yes, sir. Q. What did you do? A. I brushed by him, and got on my horse. Q. Then what did you do? A. I went as hard as I could to Alcova." On reaching Alcova he reported what had occurred, and requested one or two parties and also a physician to go out to the camp and ascertain the condition of Mulvaney, stating to them that he thought he had killed him. He then surrendered himself to the deputy sheriff, and told him the same story.

If this testimony of Finley is to be believed, the defense of the society was fully established. Is there anything in the record that would justify the jury in disbelieving it? Within a day or two after the occurrence, a coroner's jury was called. The jury visited the scene of the tragedy, took the testimony of Finley and other witnesses, and held Finley blameless. It has been said in discussion that the fact that Finley was held blameless by the coroner's jury does not free him from prosecution for the killing of Mulvaney, but that he may yet be prosecuted for that act, and that he has, therefore, a great motive for fastening upon Mulvaney the blame for his own death. While it may be seriously doubted that a jury in a civil action has the right to absolutely discredit the uncontradicted testimony of a competent witness, even if it has no corroboration, we need not decide that point, for the reason that, if that were to be conceded, it would not justify the rejection of Finley's testimony in this case. His testimony is strongly corroborated by conceded facts and circumstances, and by the testimony of the witness Holden Peterson. Mr. Peterson testified that both Finley and Mulvaney were friends of his; that he remembered the time when Mulvaney was killed; that in the afternoon of the day he was killed...