Hunt v. Ancient Order of Pyramids
| Decision Date | 01 February 1904 |
| Citation | 78 S.W. 649,105 Mo.App. 41 |
| Parties | SARAH V. HUNT, Respondent, v. ANCIENT ORDER OF PYRAMIDS, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Vernon Circuit Court.--Hon. H. C. Timmonds, Judge.
Judgment affirmed.
S. A Wright and C. G. Burton for appellant.
(1) When unsupported by the evidence, or especially when against the evidence, or when an injustice has been done, it is the duty of the trial court to set aside the verdict and grant a new trial. Bank v. Armstrong, 92 Mo. 265; Rickford v. Martin, 43 Mo.App. 597; Lawson v Mills, 130 Mo. 170; Schmidt v. Railroad, 149 Mo. 269; Robinson v. Robinson, 65 Mo.App. 209; Taylor v. Railroad, 163 Mo. 183; Lockwood v Ins. Co., 47 Mo. 50. (2) The appellate court will interfere whenever the discretion of the trial court in overruling a motion for a new trial has been arbitrarily or unsoundly exercised; or wrought manifest injustice; or whenever there is no substantial evidence to support the verdict, or when the inferences drawn by the jury are unreasonable or whenever the verdict is obviously the result of passion, prejudice or partiality. Reid, Murdock & Co. v. Lloyd & Mooreman, 61 Mo.App. 646; Whitsett v. Ransom, 79 Mo. 258; Bank v. Wood, 124 Mo. 72; O'Donnell v. Railroad, 7 Mo.App. 190; Lionberger v. Pohlman, 16 Mo.App. 392; State v. Young, 119 Mo. 495; State v. Prendible, 165 Mo. 329; Taylor v. Fox, 16 Mo.App. 527; Walton v. Railroad, 49 Mo.App. 620; Powell v. Railroad, 59 Mo.App. 335; Borgraefe v. Knights of Honor, 22 Mo.App. 127; Lovell v. Davis, 52 Mo.App. 342.
Scott & Bowker for respondent.
(1) Where a party fails to demur to the evidence and offers an instruction on the theory that there is evidence to support a certain issue, he can not complain in the appellate court of an insufficiency of testimony to support the verdict. Inglehardt Co. v. Burrell, 66 Mo.App. 117; Seitler v. Bischoff, 63 Mo.App. 157; James v. Hicks, 76 Mo.App. 108; Hopkins v. Woodmen, 94 Mo.App. 402. (2) Where there is any testimony to support a verdict, the appellate court will not set it aside. Taylor v. Short, 38 Mo.App. 21; Tower v. Pauley, 76 Mo.App. 287; State v. Jacobs, 152 Mo. 565; James v. Insurance Company, 148 Mo. 1. (3) The appellate courts do not weigh the testimony and will not interfere with the discretion of the trial courts in refusing to grant a new trial on the ground that the verdict is against the weight of the evidence. Crossan v. Crossan, 169 Mo. 631; State v. Gleason, 172 Mo. 259; State v. Jacobs, 152 Mo. 565.
The plaintiff is the widow of W. T. Hunt, deceased, who had issued to him by defendant a benefit certificate of life insurance payable to her for $ 1000. On Hunt's death defendant refused payment, whereupon she brought this action and prevailed in the trial court.
The sole ground for the appeal is the refusal of the trial court to sustain the motion for new trial, and the sole reason urged by defendant why it should have been sustained is that there was not sufficient evidence upon which to base the verdict. The certificate provided that if Hunt committed suicide no recovery could be had thereon. The defense was that he did commit suicide, which was denied by plaintiff, and that was the sole issue to which the evidence in the case was addressed. The theory of the defense is that the deceased was somewhat unbalanced in mind resulting from sickness or sunstroke, or both, and that on the day of his death he was depressed because of his wife's intention to leave home for a visit to friends and relatives in Colorado. That being in such mental condition, he purchased a pistol at a store in the city of Nevada where he lived and returned home to kill himself. That members of his family seeing he had the pistol, endeavored to get it from him and failed and that he then shot himself. The theory of the plaintiff is that he was not mentally wrong. That on the day in question he was in good health and usual spirits. That he bought the pistol to kill some troublesome and annoying stray cats that were prowling about the premises. That the endeavor to have him give up the pistol was not to prevent his using it on himself, but to prevent annoyance and fright to the family and to boarders in the house, some of whom were sick. That in slipping or stumbling and involuntarily throwing up his arms, the pistol was accidentally discharged into his head, causing his death.
There is no doubt that the evidence given in behalf of the defendant made a strong case of suicide. So strong, indeed that if the jury had returned a verdict for defendant, no one could have called it in question. There was evidence and circumstances going to show that plaintiff, her sister and her mother knew the moment they saw deceased with the pistol that he intended bodily harm to plaintiff or to himself, or both. It showed that plaintiff first saw the pistol while they were alone in the parlor and that she struggled to get it from him when it was discharged, perhaps accidentally, but the report alarmed the others and the sister seems to have immediately thought, without being told, that he had attempted plaintiff's life. Plaintiff's mother and sister followed deceased out of the house. The mother seeing the pistol in his hand asked him to give it up. It was again discharged, perhaps accidentally, but great excitement existed and the women were crying aloud and someone called a man passing along the street to go for a policeman, which he did. One or more neighbor women came over and all seemed to recognize that an extraordinary and terrifying condition prevailed. It was at this point that he shot himself and fell in the yard.
But when the case was thus made for defendant, it may be even stronger than we have put it, the plaintiff introduced herself, mother and sister and others. Their testimony went directly to support the theory in her behalf which we have already stated. If the jury believed these witnesses their testimony undoubtedly supported the verdict. Plaintiff's mother testified that when she saw deceased in the yard, near the porch or platform entrance to the kitchen, she standing in the kitchen door, the pistol "went off" and he said, "Oh, I didn't go to do that." She then told him to give the pistol to her and he turned towards her and started to step up on the platform, as she thought, to hand it to her, but as he stepped up he seemed to lose his balance; one expression of the witness was that he "stepped off backwards; he lost his balance." At any rate, he fell, or stepped backwards off of the platform, and as he did so, his hands were thrown up and while in that falling position the...
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