Curth v. N.Y. Life Ins. Co.

• Decision Date: 02 March 1936
• Docket Number: No. 27.,27.
• Citation: 265 N.W. 749,274 Mich. 513
• Parties: CURTH et ux. v. NEW YORK LIFE INS. CO.
• Court: Michigan Supreme Court

274 Mich. 513

265 N.W. 749

CURTH et ux.

v.NEW YORK LIFE INS. CO.

No. 27.

Supreme Court of Michigan.

March 2, 1936.

Action by Edward Curth and another against the New York Life Insurance Company. From an adverse judgment, the defendant appeals.

Affirmed.

Appeal from Circuit Court, Hillsdale County; Mark V. Taylor, judge.

Argued before the Entire Bench.

Merton Fitzpatrick, of Hillsdale, and Adams, Van Horn & Bloem, of Kalamazoo, for appellant.

Samuel B. Keene, of Detroit, and Chandler & Culver, of Hudson, for appellees.

BUTZEL, Justice.

Plaintiffs brought suit as beneficiaries under a life insurance policy issued by defendant on the life of their son, George, who died within the year after the issuance of the policy. The policy, of a face value of $1,000, also provided for double indemnity if death resulted directly and independently from all other causes, from bodily injury, effected solely through external, violent, and accidental means; that neither the face benefits of the policy nor the double indemnity should be payable if death resulted, among other causes, from self-destruction by insured, whether sane or insane, within the first two insurance years; that, if such self-destruction occurred within the first two years after the issuance of the policy, the company would be liable only for a sum equal to the amount of the premiums that had been paid to and received by the insurance company and no more.

It was the claim of plaintiffs that George died as a result of accidental injuries sustained under conditions not specifically excepted in the policy. Defendant planted its entire defense upon the claim that the deceased committed suicide. This became the real issue in the case. Defendant requested that three special questions be submitted to the jury, each to be answered ‘yes' or ‘no.’ The response to the first question ‘Was George M. Curth shot and killed by some one other than himself?’ was ‘Yes.’ The answers to the questions whether the deceased shot himself with intent to commit suicide, and whether he accidentally shot himself, were ‘No.’ Judgment was rendered in favor of plaintiffs in the sum of $2,596.45.

The main claim on appeal is that the finding of the jury was against the great weight of the evidence. It thus becomes necessary to briefly review the testimony. The deceased was 20 years of age when he met his death some time late in the afternoon on Sunday, February 10, 1929, at plaintiffs' home. He had a high school education, was unmarried, and was working regularly operating a machine and doing piecework for an engine company. His wages were good, he had a bank account, and owned a Ford coupé purchased from his own savings. He was in good health, had a cheerful disposition, no bad habits, and had made plans to continue his education. He had many friends and apparently no trouble with any one. He attended dances and had been keeping company with a young lady, with whom he had been on very friendly terms, and who married subsequent to his death. While there was some discussion as to letters which he had written to this young lady, only one of the letters was produced, and, as even this letter was not included in the record, we conclude that the letters and the colloquy in the lower court concerning them were of no value in solving the mystery of George's death.

Ford Curth, a brother of George, was 32 years of age, but of retarded mentality. He left school when in the fifth grade, could read only a few words, spoke but little, and in such a manner that he could only be understood by those who knew him well. For the latter reason, he was unable to testify at the trial.

At about 3 o'clock in the afternoon of the day of George's death, plaintiffs left their home in his car. Only George, his brother Ford, and a roomer, who occupied a room on the third floor of the house, remained in the house. On Sunday afternoons it was George's habit to take a bath, followed by a nap, and then to go out in the evening. There was testimony that late in the afternoon of this particular day Ford and two boys were seen in the vicinity of plaintiffs' home for five minutes, and some time after they were lost sight of an explosion was heard that sounded like the backfire of a car. Another witness testified that two young women were seen leaving the front porch of plaintiffs' home later the same afternoon.

About 7 or 8 in the evening, plaintiffs, on returning home, found a light burning in the living room. Not hearing any sound, they assumed that no one was in the house and that George had gone out without his car. About 9 p. m., when Mrs. Curth went up stairs to George's room to set his alarm clock, she saw him lying in bed as if asleep, but with such a pallor on his face that she became alarmed. She called her husband, who had already retired. He immediately rushed to neighbors to sound an alarm, and a doctor was summoned. The doctor, on arrival, rolled the bedclothes down and discovered that there was a gunshot wound just below the heart and that George was dead. The coroner was called, the covers were removed, and the body examined. It was lying on its right side with the feet, legs, and knees slightly flexed. The legs were not bent back much from the knees down.

A shotgun which had belonged to another brother and been in the house for a long time was found in the bed with the muzzle of the gun about 10 to 12 inches away from the wound, but pointed towards it, and the stock pointed towards the foot of the bed. The wound was ‘about three-quarters of an inch large,’ about an inch below, and three inches to the right of, the left nipple. The doctor probed the wound with a pencil. The direction of the shot was upward and outward. The wound went towards the shoulder, but not through the body. There was no hole in the union suit of underwear which George wore; the top button was buttoned, but the next two or three unbuttoned, and the suit pulled open where the wound was. There was a small quantity of blood on the body; some on the fingers of the left hand; some on the right side of the wound as though it was dribbling down from the wound; a spot on the upper sheet about eight or ten inches in diameter with a coppery color in its center. The deceased's shoes were by the side of the bed, his trousers hung on the corner post at the foot of the bed. The bedclothing was not disheveled or disturbed in any way. With the exception of the top of his shoulder, his body was completely covered with the bedclothes. There was no blood on the carpet nor on the top bedding. There was nothing to indicate a struggle. There was some money in the trousers' pocket. No finger-prints were found on the gun. A ballistic expert, with long experience with the Detroit police department, testified that he had conducted a number of experiments to ascertain whether it was a case of suicide. He stated, on the one hand, that, if the shotgun were shot at a distance of one inch to several feet from the body, the wound would show powder burns and a very large hole would result. Neither of these conditions was noticed by observers who examined the body. On the other hand, he testified that, if the gun were pressed tight up against the chest wall, although no burns would be shown as a result of the shot, it would do one of two things: The portion of the barrel right at the very end where the obstruction occurred would be blown off, or there would be a big ring blown in the barrel; there, however, was no ring in the barrel of the shotgun nor was the end of the barrel blown off. As no burn appeared on the body and no ring in the shotgun, the testimony of the expert is quite persuasive that decedent did not commit suicide. An experiment was performed by the deputy sheriff in charge of the case. After chloroforming a live pig, weighing about 50 pounds, placing it in the bed and covering it with bedclothes, he pressed a shotgun similar to the one found in the bed, loaded with Peters H. C. shells with which George had been shot, against its body and pulled the trigger by means of a string attached to the trigger and extending through the sheets at the bottom of the bed into the hall. He testified that there was but a slight recoil of the gun, that the hole in the body of the pig was but little larger than the muzzle of the gun, and there was some discoloration on the sheet. There were no powder burns on the flesh. He stated there might have been a small space between the clothes and the muzzle of the gun. The testimony of both the plaintiffs, however, was directly the opposite. They testified that as a result of the experiment the bedclothing was torn and burned, that the wound was much larger, and that considerable flesh was scattered on the sheet.

The main question before us is whether the finding of the jury that the deceased did not commit suicide was against the great weight of the evidence. Plaintiffs properly contend that, where death has occurred from unnatural causes, there is a presumption of law against suicide. In Burnham v. Interstate Casualty Co., 117 Mich. 142, 75 N.W. 445, 447, the question was whether the death of the insured by drowning was attributable either to suicide or accident. The court held: ‘The learned counsel for the defendant insist that the facts * * * are consistent with three theories of the cause of death, and therefore prove no one of them. These theories are apoplexy, sudden seizure, and suicide. We cannot agree in this conclusion. The testimony does not establish facts to overcome the presumption. Where death may be attributable to suicide, murder, accident, or negligence, the presumption of law is against suicide and murder.’ See, also, Powers v. Loyal Protective Ins. Co., 266 Mich. 153, 156, 253 N.W. 250.

When testimony is offered to rebut this presumption, as was done in the instant case, the presumption that death did not result from suicide disappears and is not to be treated as evidence by the jury in...