Fletcher v. Sovereign Camp, Woodmen of World

• Decision Date: 10 November 1902
• Court: Mississippi Supreme Court
• Parties: JOHN M. FLETCHER, GUARDIAN, v. SOVEREIGN CAMP WOODMEN OF THE WORLD

32 So. 923

81 Miss. 249

JOHN M. FLETCHER, GUARDIAN, v. SOVEREIGN CAMP WOODMEN OF THE WORLD

Supreme Court of Mississippi

November 10, 1902

FROM the circuit court of Attala county. HON. JAMES H. NEVILLE Judge.

Fletcher guardian, the appellant, was plaintiff in the court below the Sovereign Camp Woodmen of the World, appellee, was defendant there. D. B. Noah was the holder of a benefit certificate in the Sovereign Camp Woodmen of the World, a benevolent society and mutual insurance company, payable at his death to his two infant daughters, as beneficiaries, but the contract provided that it should be void if the insured committed suicide. Noah died at Fayette, Miss. away from his home, which was at Kosciusko, in this state, December 1 1899. This suit was brought by appellant, as guardian of the children of Noah, to receiver the amount of the certificate. The defense was that Noah committed suicide. The cause was tried at the March, 1901, term of the Attala county circuit court, and resulted in a verdict for defendant, but, on motion of plaintiff, the verdict was set aside. At the September, 1901, term of that court the case was again tried and there were verdict and judgment for defendant, the court giving a peremptory instruction to find for defendant. From that judgment plaintiff appealed to the supreme court, and defendant prosecuted a cross appeal from the order setting aside the former verdict in its favor. The only issue was whether or not Noah committed suicide. The evidence on the part of defendant was, in substance, as follows: Noah and one Perkins occupied the same room in a hotel at Fayette the night of November 30, 1899. The next morning Perkins got up early and went to his work, and left Noah in the room alone. Noah was awake when Perkins left, and they had some conversation. About two hours afterwards Noah was found dead, lying across his bed in his night clothes, with a gunshot wound entering his body just above and in rear of the right ear, passing out just above and in the rear of the left ear, with a pistol gripped in his right hand, powder indications on left forefinger and thumb and on the side of the head near the wound, and one chamber of the pistol freshly discharged. He was lying in a pool of blood, his brains issuing from the wounds. He had a gold watch and $ 1.40 in money in his pockets. He had requested an acquaintance in Fayette to have his remains shipped to Kosciusko if anything should happen to him--if he should be killed--and afterwards wrote a note reminding this acquaintance of his promise to comply with the request. A few days before his death he went hunting with a friend and talked with him about his life insurance, and told him that, if he (Noah) should be killed, or fall down and kill himself, to roll him in the buggy and carry him to town and turn his body over to Tom (the person he had requested to send his remains to Kosciusko). While hunting, he was found with his gun muzzle resting on his breast, in a dangerous position, and was seen that day sitting on a log near some bushes, with his handkerchief to his eyes, crying. The pistol in Noah's hand was a 38 Smith & Wesson, and a ball in the wall of his room was a 38-caliber ball. There were some unsatisfied judgments against Noah for more than $ 1,000, and he owed his landlady in Fayette $ 20, and he was in arrears with an insurance company, for which he had been working, to the extent of $ 100, and had been written to several times about it, and had promised to pay it the day he died.

The evidence for plaintiff was that a bullet was found in the wall of the room about forty-four inches from the floor, and that Noah's head was only about twenty-two inches above the floor, and that the bullet ranged downwards. There was also some testimony of parties who looked at the corpse at Kosciusko to the effect that they saw no wound or hole in the head of the deceased, but saw a bruise just under one of his eyes.

Affirmed.

Dodds & Luckett, for appellant.

It was an error in the trial judge to permit the verdict of the coroner's jury to be read in evidence, over the objection of the plaintiff. 2 Bacon on Benefit Societies (2d ed.), sec. 471; U. S. Life Ins. Co. v. Kielgast, 26 Ill.App. 567; Davey v. AEtna Life Ins. Co., 36 F. 650; AEtna Life Ins. Co. v. Ward, 140 U.S. 76; 11 S. C. R., 720.

"Where, upon the death of a person whose life is insured, the defense is that the death was by suicide, and the manner of death is not known, the presumption is against suicide, and the burden of proof is on the insurers to show that to have been the cause of death." Mallory v. Travelers Ins. Co., 47 N.Y. 52; S. C., 7 Rep,, 410; 2 Ins. L. J., 830; Gibson v. Am. Mut. Life Ins. Co., 37 N.Y. 580; S.C., 1 Big. Life & Acc. Ins. Co. Cas., 590; Getmain v. Brooklyn Life Ins. Co., 14 N. Y. Week Dig., 286; S.C., 18 Id., 107; Phillips v. Louisiana, etc., Ins. Co. , 26 La. Ann., 404; S.C., 21 Am. Rep., 549; Hancock Mut. Life Ins. Co. v. Moore, 34 Mich. 31.

Where the fact of death is established, and the evidence points equally or indifferentially to accident or suicide as the cause of it, the theory of accident, rather than that of suicide, is to be adopted. Cronkhite v. Travelers Ins. Co., 75 Wis. 116; Travelers Ins. Co. v. McConkey, 127 U.S. 661; S.C., 43 N.W. 741; 19 Ins. L. J. 267.

A careful examination of the entire record shows many facts and circumstances in this case entirely consistent with an accident, rather than design, to bring on the death of D. B. Noah, which abundantly sustain our contention that the jury should have been permitted to hear all the testimony of the witnesses, see their demeanor on the stand, their fairness or unfairness, and bring in a finding on the facts.

We think the reasoning of the court on the law and the facts in this case, or one very much like this, as to how Noah came to his death, to be found in 111 F. 773, decided by the United States court of appeals, fifth circuit, November 19, 1901, unanswerable, and we invite the court to examine it carefully and see how refreshingly clear the law governing the case and the facts in the same are analyzed by that able tribunal.

C. H. Campbell and J. A. P. Campbell, for appellee.

This case involved the investigation of the suicide of Noah, whose death by his own hands gave rise to the case of the Supreme Lodge Knights of Honer v. John Fletcher, Guardian, etc.,78 Miss. 377. The facts of the present case are the same as in the former, testified to by the same witnesses, with some additional testimony not produced in the other case, which makes it clearer, if possible, that Noah took his own life. Additional facts are, that there were unsatisfied judgments for more than $ 1,000 against Noah, that he owed his landlady in Fayette $ 20, and that he was in arrears with the insurance company for which he had been working some $ 100, and had been written to several times about this and had promised to pay it on the day he killed himself.

There never was, and never will be, more conclusive evidence of one's killing himself intentionally than is furnished by this case, except where credible...