Furbush v. Maryland Cas. Co.
| Decision Date | 24 June 1902 |
| Citation | 91 N.W. 135,131 Mich. 234 |
| Court | Michigan Supreme Court |
| Parties | FURBUSH v. MARYLAND CASUALTY CO. |
Error to circuit court, Alpena county; Frank Emerick, Judge.
Action on an accident policy by Louesa C. Furbush against the Maryland Casualty Company. Judgment for plaintiff, and defendant brings error. Reversed.
Charles R. Henry, for appellant.
R. J Kelley, for appellee.
Defendant has appealed from a judgment, in favor of the plaintiff, upon an accident insurance policy upon the life of her husband who was found dead in the highway.
The deceased was a lumberman, and on the day in question started to go from Nash to Washburn, a distance of a few miles. He was afterwards seen in Washburn between 9 and 10 o'clock the same day. A witness, one Lahey, one of three who found the body, started from Washburn to go to Nash. When they were about 3 or 4 miles from Washburn, Furbush passed them driving alone in a sleigh. After walking 15 or 20 minutes more, the witness saw something in the road, which he took to be a buffalo robe; they went on a little further, and found that it was the body of deceased. They left one of their number to watch the body, and then the other two walked on about half of a mile, and came to some section men working on the railroad, and told them that there was a man dead down on the road, and asked what they should do, and were told that the best thing they could do was to go to Nash and telephone to the sheriff. Thereupon all three of them went to Nash, and the station agent did telephone to Washburn, advising them to remain as witnesses. A party was made up at Washburn by the sheriff of Bayfied county, Wis., and started for the body, and arrived at about 1:30 or 2 in the afternoon, and held an inquest.
It appears to have been the theory of the plaintiff that the deceased was intentionally killed by another person. The defendant claims that he intentionally took his own life, and that, whether it was a case of suicide or homicide, plaintiff should not have been permitted to recover. The testimony offered on the trial tended to show that, shortly before the section men heard of the death, the horse of deceased was seen by them running away with the cutter, nobody being in it. The body was found close to the traveled part of the highway, the feet lying nearer the track than the head. The witness Lahey, who appears to have been a tramp, testified that he stayed the night before in an old barn at Washburn with Wallace, and met Parker the next morning in Washburn; that it was the first time that he had seen Parker; he had known Wallace two days. Lahey said that the body, when found, had a buffalo coat on, which was open; the head of the body was lying towards Washburn; that he made an examination of the snow on each side of the road to discover footprints; the traveled track was beaten down hard; that he did not see any revolver lying in the traveled part of the road near this body. 'There were no tracks, trails, or roads that were beaten and traveled leading from the place where I first saw the body, except the county road.' The next witnesses to see the body appear to have been William Goodrich and Mike Miller. Witness Goodrich caught the horse about 10:30 and in about 20 minutes was informed by three men, who came up, that the owner of the horse was lying dead in the road. He went to Mr. Bates' office, and had him telephone to Washburn, and then he went to see the body, taking Miller, the superintendent of the railroad, with him. These men did not see any revolver lying in the beaten track of the road. They found a pocketbook with nothing in it lying between the dashboard and the foot rest in the cutter. Miller testified that he noticed no tracks, trails, nor paths in the show outside of the traveled tracks. Jared Welton testified that he was under-sheriff of Bayfield county, and received the telephone message. He went to where the body was, and, when he got there, there were several of the Elks of Ashland there, who got there about the same time that he did. He testified that he was the first man up to the body; that it lay flat on its back; that his coat, vest, and shirt and underclothing were unbuttoned with the exception of the collar; his right hand was stretched out on the snow. He found a gold watch and chain and a $5 bill and two silver dollars, and some other articles upon it. He also found a revolver lying near his head on the left side in the snow; there had been one shot fired out of it, which appeared to be fresh. When they first examined the body there was a good deal of blood on the left side around the ear, and at the inquest it was supposed that he had put the gun in his left ear, and that the bullet came out on the right side. The testimony of the physicians was that the bullet entered the right side of the head. The witness testified that he examined the snow and the tracks around there to find indications of a scuffle, but there was only one track, which was close to the right-hand side of the head and a little ways from the head. ...
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