Gavin v. The Des Moines Life Ins. Co.

• Decision Date: 16 June 1910
• Citation: 126 N.W. 906,149 Iowa 152
• Parties: BRIDGET GAVIN v. THE DES MOINES LIFE INSURANCE COMPANY, Appellant
• Court: Iowa Supreme Court

126 N.W. 906

149 Iowa 152

BRIDGET GAVIN v. THE DES MOINES LIFE INSURANCE COMPANY, Appellant

Supreme Court of Iowa, Des Moines

June 16, 1910

Appeal from Polk District Court.--HON. HUGH BRENNAN, Judge.

SUIT on an insurance policy. Defense that the insured killed himself. Trial to a jury, and verdict and judgment for the plaintiff. The defendant appeals.

Reversed.

Guersney Parker & Miller, for appellant.

Sullivan & Sullivan, for appellee.

OPINION

SHERWIN, J.

In October, 1907, the defendant insured the life of Patrick Gavin in the sum of $ 1,000, payable to Bridget Gavin, his mother, the plaintiff herein. The policy contained a provision as follows: "This policy shall cease and be null and void and of no effect, (1) if within two years from the date hereof the insured shall commit suicide or die by his own hand or act, whether sane or insane at the time." The insured was killed by a gunshot on the 10th day of August, 1908, and the only fact question in the case is whether he purposely shot himself.

At the time of his death the insured was nearly nineteen years old. He lived at home with his father and mother, and for nearly four years prior to the 1st of August, 1908, he had been in the employ of a Des Moines firm as a delivery boy. On the 1st of August he laid off because he was sick, and from that time until his death he remained at home. The plaintiff testified That he was not confined to his bed all of the time, but was up and down. That he complained of being ill, but did not say what his trouble was, only that he was run down and tired out. She said: "He complained of no ache or pain, simply complained of being run down and tired out. . . . His movements were quiet. He laid still in bed until about eight o'clock, and then he would get up and lay on the sofa and read." "Some days" he would go back to bed "and some days he did not." No physician had been called for the deceased up to the morning of the 10th of August. Nor had he taken any medicine during such time, so far as the record discloses. The plaintiff further testified that "the last few days he looked lots better and pleasanter. When he was at himself he was strong." Coming now to the morning of the 10th of August, the evidence touching his condition is substantially as follows: His father says that he saw him in his bedroom at about half past seven o'clock in the morning. That "he seemed to sit up in bed, and I asked him was he going to work, and he said he thought he was." The father then left the house, and did not again see his son alive. The plaintiff says as to his condition that morning: "He intended to go to work that morning, and he felt cold he said and told me to put a cover on him, and I did, and later on I went up and straightened up the room. I asked him if he was feeling some better, and he thought he was, and I thought I would not let him lay there sick, I would get a doctor, and I went to Mercy Hospital and the Sisters told me Dr. Priestly was coming, that they expected him, and I told them to send him down. I do not know what time I was last up in his room before going to the hospital. It was after the usual time that he would get up and go to his work. That morning I asked him if he was going to work, and he said he did not think so. He said he was cold and to put a cover on him. He said nothing else. I did not ask him what the trouble was."

The plaintiff and the insured were alone in the house immediately before she went to the hospital and after her return therefrom. She testifies as follows as to what occurred after she returned from the hospital:

I began straightening up the house, and was reveling some revels that was on the carpet sweeper and I heard a noise that I though was a neighbor's screen door, and I did not pay any attention for quite a while, and, after a while, I went up and you could smell the powder smoke all over the room, and I went to his room and found him moaning twice. I did not go upstairs until about ten minutes after the noise. I did not go in response to the noise. When I went into the room, he was lying on his right side. The bed was a little from the south wall. The bed was lying east and west. It was not quite into the wall. There was nothing between the bed and the west wall. The dresser was to the east of the bed. I can not tell whether he was covered up when I went up there. He was lying on his right side, facing the wall toward the south. I put my hand around his head and turned his face toward me, and I thought he smiled up in my face, and that was all. I asked him, I says, 'Patrick, can you tell how it was done?' and I got no answer, of course. I can not tell whether I noticed the wound or not. I afterwards saw where he was hurt. Do not know whether I pulled the cover back over him or not, but I found the revolver lying on the south side of the bed. I took the revolver and laid it on the dresser, did not throw it. I can not say where from the body the revolver was. It may be it would be fifteen inches away from his body.

The plaintiff further testified that she at once called a neighbor, and that the neighbors and officers came; that she did not know where her son's hand was with reference to the revolver, and did not know where his hand was, "whether lying on top of the cover" or not. "I saw the revolver . . . on the covers."

The coroner, a physician, and two or three officers from the police department were at the home soon after the death, and their testimony is, in substance, as follows: Dr. Morris says: "I found the man lying flat on his back about the middle of the bed, his face on...