Endowment Rank K. P. v. Steele

• Decision Date: 19 May 1902
• Citation: 69 S.W. 336
• Parties: ENDOWMENT RANK K. P. v. STEELE.
• Court: Tennessee Supreme Court

69 S.W. 336

ENDOWMENT RANK K. P. v. STEELE.

Supreme Court of Tennessee.

May 19, 1902.

Appeal from circuit court, Shelby county; L. H. Estes, Judge.

Action by Annie G. Steele against the Endowment Rank Knights of Pythias. From a judgment for plaintiff, defendant appeals. Affirmed.

Greer & Greer, for appellant. F. P. Poston, for appellee.

WILKES, J.

This is an action upon an insurance policy on the life of J. K. Steele, the husband of the plaintiff. There was a trial before a jury in the court below, and a verdict and judgment for $3,000, the amount of the policy, and the defendant order has appealed to this court, and assigned errors.

The cause has been before this court twice at former times, and reversed for errors not going to the merits. There was a by-law of the order that, if the assured's death was caused or superinduced by the use of liquor, narcotics, or opiates, or was the result of suicide, whether the insured was sane or insane, then the amount to be paid should be only a proportionate amount of the entire sum provided in the policy. It was defended by plea that the insured's death was the result of suicide, or was caused by the use of liquors, narcotics, or opiates, within the terms of the by-law; and that, as a consequence, the company was only liable for $780.12, as the proportionate amount collectible on the policy in that event; and this much the company was willing and offered to pay. The insured was found dead in his room at his boarding house about 9 o'clock on the morning of April 3 1897. He was partly undressed, and the bed was turned down. Near the bed was a table or dresser, and near this was a chair, in which insured had been sitting. There was a box or vial on the dresser by the side of the chair, labeled "Morphine." When found, insured had pitched forward partly out of his chair, the side of his face and part of his body lying on the floor. His face was much discolored with a bluish black appearance, and a slip was lying under his body, on which was written in pencil: "Annie, My Dear Wife: Life is too burdensome for me to bear." He had a lead pencil grasped between his fingers. He was without money, and was in arrears for board, and had asked indulgence of his landlady. There was no fire or gas in his room. There was the empty vial on the dresser, labeled, "Morphine," and there was the slip of paper as before stated. There was evidence tending to show that he had attempted suicide by taking morphine three times previously at another hotel, when the proprietor told him if it was his purpose to commit suicide he would prefer that he would go somewhere else to do it. Steele then left the hotel.

It is not assigned that there was no evidence to support the verdict. The first error assigned is that the court committed error in impaneling the jury. Twelve men were placed in the box, and, after examination, were passed by the plaintiff, and then examined by defendant. A person by the name of Dean was examined, and in answer to questions put said, in substance, that he would not find for the defendant company upon circumstantial evidence, but would do so upon a preponderance of the evidence. His answers not being satisfactory to the defendant, he challenged the juror for cause, but the court refused to sustain the challenge, and defendant thereupon challenged the juror peremptorily, and his place was filled by another, who was satisfactory. The defendant afterwards challenged juror Walker peremptorily, but accepted others as satisfactory. The defendant at length challenged juror Bond peremptorily, when he was told by the court that his challenges were exhausted, whereupon counsel for defendant stated that he had no objection to the juror Bond, but made the challenge peremptorily simply to preserve the point, and this was more elaborately explained by the court, with the assurance that counsel for defendant had no objection to the juror, but wanted merely to preserve his rights to his peremptory challenges. It is said that this was error. We are of the opinion that it was not. The defendant was not prejudiced by the action in regard to juror Dean, since he was not on the jury. He was not prejudiced by the refusal of the trial judge to permit him to challenge juror Bond, because this juror was satisfactory to him, and he was not in the make-up of the jury compelled to accept any...