Appeal
from Common Pleas Circuit Court of Greenville County; T. S
Sease, Judge.
Cothran
and Marion, JJ., dissenting.
Hodges & Leatherwood, of Greenville, for appellant.
Dean
Cothran & Wyche, of Greenville, for respondents.
GARY
C.J.
This is
an action on a policy of insurance in the sum of $1,000
issued by the defendant on the life of J. L. Dill (who
died on the 5th of December, 1921), in favor of Flora Dill, his wife, and his surviving children, the
plaintiffs herein.
The
defendant denied liability, and set up as a defense the
provision contained in the policy, that, "if a member
dies by his own hand or act, whether, sane or insane,"
it should thereby become null and void.
The
case was tried before his honor, Judge Sease, and a jury, and
resulted in a verdict in favor of the plaintiffs for $1,000,
and the defendant appealed upon the following exceptions:
(1) "That his honor, the presiding judge, erred in
overruling the defendant's motion for a directed verdict,
made on the ground that the application for a policy, the
policy itself, and the constitution and by-laws of the
Woodmen of the World provided that the policy is not payable
if the deceased came to his death by his own hand or act, and
that the testimony is susceptible of no other inference than
that the deceased came to his death by his own hand and
act."
(2) "That his honor, the presiding judge, erred in
refusing to direct a verdict in favor of the defendant upon
the ground that the testimony was susceptible of no other
inference than that the deceased came to his death by his own
hand and act."
The
record contains this statement:
"At the conclusion of the testimony a motion for a
directed verdict in favor of the defendant was made on the
ground that the application for a policy, the policy itself,
and the constitution and by-laws of the Woodmen of the World
provided that the policy is not payable if the deceased came
to his death by his own hand or act, and that the testimony
is susceptible of no other inference than that the deceased
did come to his death by his own hand and act, upon which
motion the court made the following ruling:
' In the McKendree Case I felt certain
there was no other reasonable inference to be drawn other
than that he had committed suicide, and I directed a verdict.
After seeing the lawyers they told me frankly I had put it on
the wrong ground, and they thought the Supreme Court would
reverse me on the ground of suicide. The Supreme Court did
reverse me, saying I was in error in directing a verdict, as
it was for the jury to say whether there was any other
inference to be drawn. So the question must be submitted to
the jury. That is the law, and the motion is refused.'
"
The
following witnesses testified in behalf of the respective
parties, as follows:
Mrs.
Furman Sloan, for defendant:
"I live in sight of the Dills. She stayed at my house
about two weeks after he died. She told me she kept the
oldest son out of school as Mr. Dill seemed to be off a
little bit. At that time she was talking about his death, but
did not say anything else about his mental condition. We just
talked about him being off a little, and she kept her son out
of school to help gather the corn."
Furman
Sloan, for defendant:
"I live 6 miles north of Greer, and about one-fourth
mile from Mr. Dill's house. I had not gotten up when I
heard the screaming of the Dill family. I dressed as fast as
I could and ran over there. I saw Mr. Dill hanging there by a
plow line and he appeared to be recently dead. He was hanging
from the limb by a plow line on the side of the gate next to
the house. The rope was doubled and was looped around the
neck. When I got there Campbell and Fitts were there. I did
not make an investigation and stayed only a few minutes. I
didn't particularly notice any tracks, and saw nothing
around the place or on the body to indicate a struggle. I saw
the doctor examine the body and saw no marks of violence. Mr.
Dill's feet were 4 or 6 feet above the ground, and the
limb was 3 or 4 feet above the gate. I saw
some dirt on the gate some time through the day, but
don't know that I noticed it that morning. From the top
of the gate a man could reach up and tie a rope around the
limb. The rope was 14 or 15 feet long and was doubled. I have
known Mr. Dill 14 or 15 years, and did not know that he had
any enemies in the community. I don't know much about Mr.
Dill's mental condition, but it appeared to me as if his
mind were off some. I don't know of any cause for mental
trouble recently before his death."
F. B.
Fitts, for defendant:
"I examined around the place for other tracks to see if
I could discover where anybody else had a hand in the
hanging, and say no others except about 10 steps I saw what
looked like children's tracks. I was the first one to get
to the place, and Campbell was right behind me. I looked for
evidence of foul play and found none. Mr. Dill's clothes
were not disturbed, and there were no signs of a man
struggling or being carried by other persons. I have known
Mr. Dill about 9 years. Three to five days before he died he
seemed restless and talked a little to me, and said that he
hated to move from where he had lived. He said he had made 7
crops there and was bothered about moving. He was a strong
hard working kind of man. When I talked to him he was on
foot. He asked me how I was getting along and said he wished
John Henson had not died and he would not have had to move.
He didn't tell me where he was going nor that he was
nervous. He turned and looked off
when I was talking, which wasn't an unusual matter for
him. I studied about the conversation afterwards, but
didn't think anything serious was going to happen. The
tracks seemed to come down the path to the house and went up
to the end of the gate. Inside the pasture there was a hog
lot. I did not see a hog that day and was not looking for
hogs. I cannot say whether the shoe that made the track was a
7, 8, or 9. Where I saw the track was in sand
and pine needles. To the best of my knowledge the tracks were
Dill's tracks. The shoe has a tolerable low heel of
leather."
J. M.
Duncan, for defendant:
"I live 6 miles from Greer, about one-fourth mile from
where Mr. Dill lives. I went to the
place where Mr. Dill was hanging between 7 and 8 o'clock
in the morning. I did not make a particular examination of
the ground, as there had been several there. I saw sand on
the planks of the gate. I believe from the marks I saw on the
gate that a man standing there could have tied the rope,
looped it around his neck, jumped off and hung himself. I
heard Mr. Dill's little boy say that morning that his
father said before he died that he would rather die than move
where he was going. I could not say exactly where I was when
he told me that, but I was not far from where Mr. Dill was
hanging. I don't think any one was present when the boy
told me that. It was the oldest boy, whose name is Alvin. I
don't remember that I ever told any one about what the
little boy said."
S. D.
Henson, for defendant:
"I went to the place where Mr. Dill was found about 7 or
8 o'clock in the morning. There were several persons
there, and I saw Mr. Dill hanging to the limb of the tree.
There was a draw knot at the limb, and the loop was around
his neck. He was dead. I saw some tracks leading from the
house, but several people were there when I got there. I saw
marks of sand on the gate on one crosspiece. It seemed to me
that Dill's mind was off some. I saw him the week before,
but didn't know whether he was off or just seemed like he
was not always like he had appeared. I had no talk with him,
and didn't see him until the morning when
...
