Cox v. Royal Tribe of Joseph

• Decision Date: 12 January 1903
• Parties: COX v. ROYAL TRIBE OF JOSEPH.
• Court: Oregon Supreme Court

71 P. 73

42 Or. 365

COX v. ROYAL TRIBE OF JOSEPH.

Supreme Court of Oregon

January 12, 1903

Appeal from circuit court, Multnomah county; M.C. George, Judge.

Action by Dean Cox, a minor, by J.P. Finley, her next friend against the Royal Tribe of Joseph. Judgment for plaintiff and defendant appeals. Affirmed.

This is an action to recover upon a beneficiary certificate for $2,000, issued by the defendant to Capitola Blanche Cox, a married woman, in favor of the plaintiff, her daughter. Immediately prior to the death of Mrs. Cox, which occurred July 1, 1899, she was engaged in conducting a restaurant at No. 206 Madison street, between First and Front, in the city of Portland. She had been engaged in the business some six weeks or more, and lived in a room adjoining or over the restaurant. Early in May she had a severe attack of la grippe, was attended by a physician, and found to be suffering from intense pain in the head, and was at times, as described by the physician, "nearly wild." She apparently recovered from this trouble by the last of the month, except that it left her in a nervous condition. It was her habit to rise at 5 o'clock in the morning, or earlier, and do her marketing. On the evening of June 30th about 9 o'clock, her daughter, who was making her home with J.P. Finley, some two and a half blocks distant, was with her at the restaurant, and testified that her mother walked part of the way home with her; that she said she did not feel like going, had to stop and rest on the way, and was so tired that the witness requested her to return, which she did; that she was with her mother the second day before her decease, and that she was light-hearted; that shortly before her death she had a slight stroke of paralysis, but that it did not amount to anything; that her financial condition was such that she had to call upon some of her friends for assistance, among whom were Miss Anna Finley and Mrs. Green the latter living at Hamilton avenue, South Portland, from whom she borrowed something like $100; that Mrs. Green lived south of where deceased was found, and that she could have conveniently gone that way in going to her place of residence; and that she went to see Mrs. Green frequently, going both in the daytime and the evening. Inez Jenkins testified that she had a rooming house adjoining the restaurant, and that Mrs. Cox roomed with her occasionally; that witness saw her and talked to her about 10 o'clock, after she had retired, on the evening before her death; that she said she had a great deal of trouble in her restaurant, and had just employed a married man and his wife to cook for her; that she spoke of being tired, and complained of the top of her head hurting her, and said that when she laid down at night she wrung a towel out of ice water and put it on her head; that she had been complaining of her head for about three weeks; that she said she thought her business would be prosperous if she only had the means to get ahead, and remarked that she had but little means with which to obtain provisions for breakfast; that she left the room about 5 o'clock in the morning; that at one time previous witness heard her say she had a notion to take a revolver and blow out her brains, but laughed when she said it, and witness thought little about the incident; that she was in the habit of carrying a revolver for self-protection, and, as a rule, she went in the morning to Duffy's market, on the corner of Front and Madison; that on the morning in question the meat was sent over to the restaurant, and that witness found her purse, after her death at the restaurant, with a little money in it. It is further shown that at 7:15 o'clock in the morning of July 1st her body was found floating in an eddy of the river at the foot of Mead street, about a mile south of her place of business. The river was high, and at the place referred to the water was from 4 to 8 or 10 feet deep. It was near the railroad track, along which the old macadamized road ran, which was usually traveled by persons going to and from parts of South Portland. When first seen, her body was 10 or 15 feet from shore, face upward, and her hair loose, and gathered about her face. On the shore, and within a few feet of the water's edge, was found her straw hat, underneath which were deposited her pistol and a note in her handwriting, written with a lead pencil on yellow paper, containing these words and figures, "Mrs. Cox, 206 Madison Street," and near by was her cape or cloak. The margin of the river, from the road down to the water, was covered with grass, and the track of a woman heading toward the stream was found at the water's edge, partly covered by the water. Her two account books, tied together with a string, which she was in the habit of carrying with her when marketing, were found in the water near the shore, and the paper upon which the note was written was apparently taken from one of these books. Examination of the body disclosed that the lungs were free from water; that sand was contained in her nostrils, that her lips were of a violet color, and that there were no bruises upon the body, or any indication of violence. Dr. Candiani, the physician who examined her at the morgue during the coroner's inquest, testified that the indications showed that she died from asphyxiation,--that is to say, on being submerged she closed her mouth, thereby excluding water from the lungs, resulting in asphyxiation; and that the body had the appearance of having been in the water a short time only,--from two to four or five hours. Mrs. Cox was about 37 years of age, stout build, weighing 185 pounds and upward. The jury were taken to view the place where her body was found. During the course of the trial the record of the coroner's inquest was offered in evidence by the defendant for the purpose of showing that death was the result of suicide, there being a clause in the policy voiding it if death was so occasioned, and, upon objections interposed thereto, it was rejected by the court. The defendant also offered in evidence proofs of Mrs. Cox's death, submitted by J.H. Bridgeford, scribe of the local lodge, to the supreme executive council, with a copy of the coroner's record attached thereto, whereupon objection was again made to the introduction of such record, but not as to the other proofs, and, defendant's counsel being unwilling to segregate it therefrom, the whole was rejected. At the close of plaintiff's case, and again at the close of the testimony, the defendant moved for a nonsuit, which motion was in each instance denied. Defendant also requested the court to direct the jury to find a verdict for defendant. This was also refused, and, the verdict and judgment being for plaintiff, the defendant appeals.

Wm. D. Fenton and R.A. Leiter, for appellant.

A.C. Spencer and W.E. Thomas, for respondent.

WOLVERTON, J. (after stating the facts).

The first question of vital importance presented is respecting the admissibility of the record of the coroner's inquisition super visum corporis as independent evidence to show the fact of suicide. The contention of counsel is that defendant was entitled to have it go to the jury, not as conclusive evidence of the fact, but along with the other evidence bearing upon the subject for their consideration. Anciently, the office of coroner was of great dignity, and exercised by persons of high authority, as well as by those in lesser degree and station. Blackstone says: "There are also particular coroners for every county of England usually four, but sometimes six, and sometimes fewer. This office is of equal antiquity with the sheriff, and was ordained together with him to keep the peace when the earls gave up the wardship of the county. He is still chosen by all the freeholders in the county court." 1 Bl.Comm. *347. As ascertained in great measure from the statute (4 Edw. I de officio coronatoris), the powers and duties of the coroner are both judicial and ministerial, his judicial authority extending to inquiries touching the manner of death of any person slain or dying suddenly, or in prison, which must be super visum corporis; and also to inquiries respecting treasure trove and shipwreck. His ministerial office is only as the sheriff's substitute. 1 Bl.Comm. *349; 2 Bac.Abr. 428. A coroner's court in England is a court of record, and upon a finding of felo de se the executor or administrator may remove the inquest of office into the court of the king's bench, and traverse it; for it is said: "It would be hard that he should be concluded by an inquisition, which is nothing more than an inquest of office, taken behind his back." Starkie, Ev. (10th Ed.) *404; 7 Am. & Eng.Enc.Law (2d Ed.) 604; 1 Hale, P.C. 416, 417; Garnett v. Ferrand, 6 Barn. & C. 611. In the United States they are generally denominated courts of inferior jurisdiction, and not of record. 7 Am. & Eng.Enc.Law (2d Ed.) 604. But in this state the organic act does not so much as dignify the office with any judicial functions whatever. Const. art. 6, § 6; article 7, §§ 1,9. In the case of a felo de se, under the old law his goods and chattels were forfeited to the king, and his body was given over to an ignominious burial, these resultant features giving the inquisition the semblance of an action in rem, which determined the status both of the person of the deceased and of his goods and chattels. So it has come to be held in England that inquisitions post-mortem are admissible as evidence of the status, but not conclusive. Sergeson v. Sealey, 2 Atk. 412; Starkie, Ev. (10th Ed.) *406; 1 Greenl.Ev. (15th Ed.) § 556. A like rule has been promulgated in some of the states of the Union, based upon the reasoning that gave rise to it in the country of its nativity. Insurance Co. v....