Deweese v. Woodmen of The World

• Decision Date: 11 February 1922
• Docket Number: 23,456
• Citation: 204 P. 523,110 Kan. 434
• Parties: BESSIE DEWEESE, Appellee, v. WOODMEN OF THE WORLD, Appellant
• Court: Kansas Supreme Court

204 P. 523

110 Kan. 434

BESSIE DEWEESE, Appellee, v. WOODMEN OF THE WORLD, Appellant

No. 23,456

Supreme Court of Kansas

February 11, 1922

Decided January, 1922

Appeal from Wyandotte district court, division No. 1; EDWARD L FISCHER, judge.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

FRATERNAL INSURANCE--Insured a Suicide--Certificate Forfeited. The evidence all pointed to suicide of the person insured by the policy sued on herein, and was such that no other reasonable conclusion could be drawn. Held, error to refuse a directed verdict for the defendant.

George R. Allen, of Kansas City, for the appellant.

Charles O. Littick, of Kansas City, for the appellee.

OPINION

WEST, J.:

This action was brought on a policy of insurance. The plaintiff recovered and the defendant appeals. The only question is whether or not the evidence so plainly showed suicide as to require an instructed verdict for the defendant.

The deceased was under thirty, a healthy, cheerful man, and about completing a bungalow for his family, when the end came. He was found about nine o'clock in the forenoon in this bungalow hanging by window cord suspended from a rafter, his feet about eighteen to twenty-four inches from the floor. Life was extinct but his body was still warm. There were neighbors and houses in the vicinity, the nearest house being about three hundred feet away. No explanation is found in the abstract or counter abstract as to how murder could have been committed. The jury, however, returned the following:

"Was the death of Luther E. Deweese caused by hanging? Answer, Yes.

"If you answer Interrogatory No. 1 'Yes' then state if death was caused by his own act or hand. Answer, No.

"If you answer Interrogatory No. 3 'No' then state what you find other than his own act or hand did cause death. Answer, Homicide."

The defendant requested the following instruction which was refused:

"You are instructed that under the evidence in this case it is conclusively shown that Luther E. Deweese, deceased, came to his death by his own act or hand, commonly called suicide, and, under the provisions of the contract of membership existing between himself and the defendant fraternal beneficiary association, his certificate was forfeited and plaintiff cannot recover in this action. Your verdict must, therefore, be for the defendant."

In order to decide the question presented it is necessary to state in substance the evidence touching the death. The widow testified that they intended to move into the new house the week following the death; that there had been no domestic trouble of any kind or any family tilt the morning the deceased went to his work; that he had no financial troubles and had arranged for money necessary to build the house, and when he left home on the morning of July 18, for his work he had less than fifty cents with him; that she never heard of any insanity in his family.

A sister of the deceased testified that he was twenty-seven years old when he died; that the house he was building was a five-room, one-story bungalow in a built-up neighborhood, one house across the street north, and one across the street west, and that she saw nothing unusual in his face, actions or mental condition when she saw him last on July 6; that he belonged to a brakemen's union and had worked at Armour's about six weeks and quit because he would be required to join the union if he stayed there and decided not to stay there and quit and build a house for himself, and later went to work at Proctor's where "it wasn't union." That he said he had to either join the union at Armour's or quit work, and he decided to quit. That this was the reason he did quit.

A carpenter testified there were no other houses in the same block except a shed in the back where cement was kept; that the joists were two by four and a little over fourteen inches apart; that the ceiling joists were eight or eight feet two inches from the floor; that the deceased weighed about one hundred sixty-five, and was five feet and ten or eleven inches tall; that while he worked there, the deceased was interested in the work and anxious for the house to be completed and move in and did not appear morose or melancholy; that it would be possible for a man of the deceased's build to drop down between two joists. "It would be possible, but hardly probable that he would fall through without hitting a joist." The rafters were two feet apart.

A neighbor testified that he heard the deceased around on the inside of the house about 9:15, and a neighbor called across that there was a fellow hanging over there in the house, whereupon he went over and saw the deceased hanging there "probably three foot from the west partition and three foot from the north partition, hanging by a sash cord about the size of your thumb, fastened to a rafter at the top coming down between two ceiling joists, and around the neck of the deceased in the shape of a noose." The body was still warm and the witness saw a little book taken from the hip pocket of the deceased in which was a pencil and there was some writing and other figures in the book. The writing was--"Dear Bessie: Don't take any more expense at my funeral than necessary. Take care of the children. Trouble and worry caused this. Goodbye." Below that it said: "Notify my wife, Mrs. Bessie Deweese, 367 South Tenth Street." The house was about three hundred feet distant and in clear view of the home of the witness, and there was no one else around there.

The wife of the witness last named testified that the Deweese house was in the block, three hundred feet west of their house and she frequently heard him singing about this work and that people called in to see how he was getting along with the house, but she did not recall seeing anyone around there except Deweese in the morning before he was found dead, and she heard no unusual noise.

The city clerk of Kansas City testified that somewhere between nine and eleven o'clock he went to the house with Sergeant Evans of the police department and found the body hanging by a rope such as is used in hanging window weights, and his feet were about eighteen inches or two feet from the floor. The sergeant found in the pocket a book with a note scribbled in it and the witness read and copied it for the sergeant. The note read as follows:

"Notify Mrs. Bessie Deweese, 367 South Tenth Street. Please don't take much expense with my burial. Good-bye, and take care of the children. Trouble and worry caused this.

LUTHER DEWEESE."

He examined the body carefully and found no bruises or marks of violence. It was fully clothed and there was no indication that death had been caused in any way except by hanging. There were some neighbor women around in front of the house talking about the matter, and three or four men and boys, and one of them a negro, looking in at the window.

The coroner testified that after a careful examination of the hands, face and body to ascertain if there were any marks of violence besides the condition of the neck, he found no other abnormal condition, and found that death was caused by a broken neck from hanging. He did not hold an inquisition for he found no evidence of crime and did not think it necessary. The neck was broken.

The police sergeant testified:

"When you went out there, Sergeant, did you make any examination of the body to see whether there was any marks of violence other than the red around the neck? Was there anything wrong with the head or face or hands. A. There was nothing about the body that caused us to believe anything but that he had hung himself."

Neither Mrs. Deweese nor any other person, so far as witness knew, had ever made complaint to the police department for any investigation or search into the cause of death other than was made by witness.

Mary Stewart testified that she lived across the street north. She worked around the house and heard Mr. Deweese singing and whistling doing his work during the morning; she saw no one else around the house and heard no outcry of any kind.

A merchant who had known the deceased for fourteen years testified that he did not seem morose but was just a lively, hard-working young man; he was not a drinking man and there did not appear to be anything wrong with his mind. Never heard of any bad habits.

The deceased had a piece of old rope or sash cord about five feet long which he used to draw water from a spring and also to carry his tool chest. On the morning of the 18th he took no rope with him when he went to work. A witness said she saw a rope being taken away but could not see whether it was the rope which the man was swinging to; that she saw a man take a rope but could not see whether it was the one the deceased was hung with or not. The rope was taken away about half an hour after the body was cut down. Mention is made of this rope testimony because emphasis was placed on it in the argument.

With the rules and decisions invoked as to love of life, the province of a jury, the inference to be drawn from testimony and circumstances, and the likelihood of men coming to different conclusions, we are quite familiar. But brief reference will be made to recent decisions in cases involving somewhat similar questions. In Mutual Life Ins. Co. v Wiswell, 56 Kan. 765, 44 P. 996, the evidence of accidental or suicidal death was held to be so evenly balanced as to leave the question in doubt. The deceased, a ministerial student, overworked, was adjudged insane and committed to the asylum, recovered and was discharged. He suffered from insomnia and took powders to produce sleep. He was...