Hardinger v. Modern Brother-Hood of America

• Decision Date: 05 April 1905
• Citation: 103 N.W. 74,72 Neb. 869
• Parties: ELIZABETH HARDINGER, GUARDIAN, v. MODERN BROTHER-HOOD OF AMERICA
• Court: Nebraska Supreme Court

103 N.W. 74

72 Neb. 869

ELIZABETH HARDINGER, GUARDIAN, v. MODERN BROTHER-HOOD OF AMERICA

Supreme Court of Nebraska

April 5, 1905

AFFIRMED.

OPINION

BARNES, J.

This case is before us a second time for our consideration. In an opinion, ante, p. 860, written by Mr. Commissioner OLDHAM, and approved by the court, it was held that the trial court erred in directing a verdict for the defendant below. A rehearing was allowed, the case has been reargued, and the same question is again presented for our consideration. Our former opinion contains a full and complete statement of the pleadings, from which it appears that the defense of suicide was the only issue tendered for trial in the court below. On that question the burden of proof was on the defendant. Modern Woodmen of America v Kozak, 63 Neb. 146, 88 N.W. 248; Travellers' Ins. Co. v. McConkey, 127 U.S. 661, 8 S.Ct. 1360, 32 L.Ed. 308; Schultz v. Insurance Co., 40 Ohio St 217, 48 Am. Rep. 676. Examining the record, in view of this rule, we find that it discloses that one George S. Hardinger joined the association on the 8th day of April, 1899, and that at a later date a beneficiary certificate was issued to him in favor of his minor son; that he was found dead, or in a dying condition, on Wooded Island, in Jackson Park, in the city of Chicago, on the evening of April 5, 1902. On the trial in the district court it was shown by the association, in support of its defense, that the deceased was in charge of a bank in Overton, Nebraska, from 1895 to 1899; that early in the latter year he became a defaulter for something like $ 30,000, and was discharged from his position for that reason; that he never made his shortage good, but was not prosecuted criminally, nor was he unduly pressed for the payment of his shortage, because of his relationship to the owners of the bank; that later on in that year he moved to Chicago, rented rooms in a flat at number 6,448 Armour Avenue, in Englewood, a suburb of that city, and established his residence there; that after he lost his position with the bank he was despondent and troubled about his business matters; that in June, 1901, while his wife was visiting her parents at Tinley Park, about 25 miles from Chicago, and while he was alone in his house, he was overcome by escaping gas. He was found by the postman, who called a physician, and he was resuscitated. He was ill from the effects of his asphyxiation for a considerable time; was treated by one Dr. Lovewell, and it appears he recovered from that illness in about six weeks. When asked by the doctor on one occasion as to how the matter occurred, he refused to make any explanation of it; that when the same question was asked him by his wife, he informed her he did not know anything about it. From that time until his death it appears that he was ill at times; that in August, 1901, he was troubled with hallucinations; and believed that his child had been taken away. He thereupon left home in search of it, being gone about two days. It was also shown that it was his habit to go to the city every morning to amuse himself, and remain there until time for the evening meal; that he was without employment, but had, in a great measure, recovered his physical health at the time of his death. His condition can best be explained by quoting the evidence of his wife:

Q. After he was sick in June he never went to work again as bookkeeper, did he?

A. He did not.

Q. And after he was sick in June he was confined to the house for some time, wasn't he?

A. A few days.

Q. And he was under the care of the doctor for some time, was he not?

A. In June?

Q. Yes, and until along in October, he was still doctoring with Dr. Lovewell, wasn't he?

A. I don't know; I don't remember.

Q. And in August he was under the delusion that his son was stolen?

A. At that time, yes.

Q. And from that time on did he go down town every day?

A. He was in the house about a week until he was well again, and he went down town every day.

Q. That was after he was wandering around?

A. Yes.

Q. Then he would go down town?

A. Yes.

Q. Do you know what he went down for?

A. Just went down for pastime.

Q. Went down for pastime?

A. That's what he said.

Q. Now you say after that time in August, when he was away a day and a half, after he got well he was all right mentally. Do you mean that?

A. He was all right, but he was sick.

Q. Well mentally?

A. Well, I think he was at times.

Q. You think he was at times?

A. Most of the time.

Q. A part of the time he was mentally unbalanced?

A. Well, I wouldn't call it unbalanced.

Q. Under depression?

A. Well, he was dizzy.

Q. And along toward evening he would have fits of melancholia, or depression?

A. No, he was the same all the time, but suffered from insomnia; couldn't sleep.

It further appears that on the morning of April 5, 1902 Hardinger left his house and went to the city as usual; that at about seven o'clock that evening two policemen, who were on duty on what is called Wooded Island, in Jackson Park, heard a shot fired at the distance of from 100 to 200 yards from them, and hurried immediately to the place from whence the sound came to ascertain its cause. They found Hardinger lying on his back by the side of a log; his blood and brain oozing from a wound inflicted by a pistol shot on the right temple at the edge of the hair line in front of the ear; the wound was blackened around its edge where the bullet entered; a revolver lay at his right hand with three cartridges in its chamber, one of which had been recently discharged, and the smell of powder smoke still lingered about the place. A careful examination disclosed no footprints or traces of the presence of any other human being near the body, or in that immediate vicinity; his clothing was undisturbed; his watch, ring, purse and other effects were found on his person, and in his vest pocket was a memorandum book in which his name and address were written. This memorandum book had written in pencil with his own hand upon the first leaf or page, lengthwise thereof, the words: "There is nothing to tell; simply weary." The book contained no other writing of any kind, and Hardinger died without regaining consciousness. The testimony also showed that no other person was...