Ingle v. Sovereign Camp Woodmen of World

• Decision Date: 06 December 1919
• Citation: 216 S.W. 787,204 Mo.App. 597
• Parties: KATHERINE INGLE, Respondent, v. SOVEREIGN CAMP WOODMEN OF THE WORLD, Appellant
• Court: Missouri Court of Appeals

216 S.W. 787

204 Mo.App. 597

KATHERINE INGLE, Respondent, v. SOVEREIGN CAMP WOODMEN OF THE WORLD, Appellant

Court of Appeals of Missouri, Springfield

December 6, 1919

Appeal from Division One of Jasper County Circuit Court.--Hon Joseph D. Perkins, Judge.

AFFIRMED.

Judgment affirmed.

James P. Mead for appellant.

Walden & Andrews and A. M. Baird for respondent.

STURGIS P. J. Farrington and Bradley, JJ., concur.

OPINION

STURGIS, P. J.

It is conceded that defendant is a fraternal benefit society and that its benefit certificate on the life of Emery Ingle in favor of plaintiff, his wife, was in full force and effect at the time of insured's death. The defendant refused to pay the policy and its defense of this suit is based on the ground that the manner and cause of the insured's death rendered the policy void under the clause following: "If the member holding this certificate . . . shall die . . . from the direct result of drinking intoxicating liquors, . . . or by his own hand or act, whether sane or insane . . . or in consequence of the violation or attempted violation of the laws of the State, . . . this certificate shall be null and void." The defendant alleged in its answer and undertook the burden of proving that the insured's death was the direct result of drinking intoxicating liquors and in consequence of the violation of the laws of the State. The plaintiff offered no evidence on this point but rested her case on the facts elicited by the direct and cross-examination of defendant's witnesses. It appears, however, that defendant called most if not all the witnesses whose evidence would be valuable, using plaintiff's evidence given at the coroner's inquest as an admission against interest. These witnesses were friends and relatives of the deceased but that only went to their credibility which was in general, though not as to particulars, vouched for by defendant.

Since the jury found for plaintiff we must take the facts supported by substantial evidence most favorable to her side of the case, which are in brief as follows: The insured came to his death by a gun shot wound fired from a shot gun in his own hands about midnight while he was in the act of opening or passing through a revolving gate at the house of one Riddle just across the street from his own home in the town of Duenweg, Jasper County, Missouri. To what extent this was due to accident, to the insured's intoxication and the unlawful possession and use of the gun is the question presented. The deceased went to Joplin in the evening in an automobile with some friends including a brother-in-law and while there was drinking--"took a few drinks," as his brother-in-lay testified. He returned home about eleven o'clock at night and at once began quarreling with and threatening his wife, accusing her of 'following him." He seized his wife and choked her but she escaped and went across the street to the home of Mr. Riddle where her brother-in-law was staying. The insured followed his wife in a few minutes and with profane language ordered her to go home. She purported to obey but instead went into a vacant lot and later to another neighbor's house. The deceased had a shot gun with which he smashed in the door of Riddle's house and in doing so broke the stock off the gun retaining the loaded barrel. He then went home and not finding his wife soon returned to the Riddle home, was yet boisterous and broke a window and again left with the gun barrel going toward his home. In the meantime his little boy had gone into the street and was crying. The brother-in-law, Verne Cunningham, went and picked up the child, the deceased came to him and together they returned to the Riddle house and at the gate, some hundred and twenty-five feet from the house, the gun barrel, being still in deceased's hands, was discharged killing him almost instantly. His brother-in-law was the only one who did or could tell exactly what occurred at the time the gun was discharged. He testified: "He (insured) had not just returned from Riddle's at the time of the shooting but was outside the gate coming from towards his own house, not coming from Riddle's house. He was on the outside of the gate coming from his house. I judge it was about ten minutes from the time he left Riddle's house until the shooting occurred. I did not exactly see the gun. It was dark. I know he had it in his hand. I saw the fire. The stock was not on the barrel at the time. All he had was the barrel. He fired it. He pushed it against the gate post. The gate turns around. The muzzle of the gun was towards him. He took the gun and pushed it on one of those things to turn the gate around and as he did the gun went off. At the time there was no trouble at all. Everything was perfectly peaceful. He talked to me as though he was ashamed of himself. He said he had been a mean son of a bitch. That was after he left Riddle's house the last time. He wasn't quarreling with me. The child and I were the only persons there. He wasn't quarreling with the child. I had the child in my arms and we were standing there. There was no ill feeling between him or any one around there at the time. . . . It was some time after he left Riddle's house before the shooting occurred. About ten minutes anyhow. It was a brother older than my brother John that he drove off from the house with the gun. This took place some time before that. After he came back he went home and then back to Riddle's. If there had been any trouble that was half an hour before the firing of the shot." On this point Mr. Riddle testified: "The deceased came to my house twice that evening. The second time he left my house, if there had been any trouble it had quieted down and he went on peacefully. He walked peacefully down towards the gate. Was standing at the gate talking to the boys. No trouble was brewing at that time. When the gun was fired I don't know how it happened. The stock of the gun was lying on my porch and when he left my house all he had of the gun was the barrel of the gun. . . . The gate is I expect 125 feet, maybe more, from my house. Was in a position so that if there had been any disturbance going on out there, I would have heard it. There was nothing of the kind. The gate was of the kind that turns around as you go into it." Mrs. A. F. Lewis testified: "My home is right across the alley from Mrs. Ingle. About fifty feet away, I judge. I was sitting in my dining room window looking out at the time the shot was fired. I could see Mr. Ingle out there where the shot took place. He was not engaged in any angry altercation or waving a gun or disturbing the peace in any way that I could see at that time. He was standing there talking very quiet for several minutes. I ran back into the bedroom. I couldn't see the gun. It was a shot gun. The scream first attracted my attention. I went and got up and didn't see anything. After a while I saw Mr. Ingle go across the road. I supposed it was his wife that screamed. It was a woman's voice. Emery (the insured) went then to his brother-in-law's, Mr. Riddle's. I do not know what he did there. After that I saw him come back across the road home. He went into the house. I can't say for certain how long he stayed in the house. I think it was about an hour from the time I heard the scream until the shot was fired. . . . The shooting occurred right at the gate. I didn't hear what Mr. Ingle said. I heard him talking to Mr. Cunningham. Verne said, "You ain't mad at me, are you Emery? and he said, "No, I am not mad at you." That was the only sentence they spoke . . . He came back across the road leisurely and quietly and stood there talking peacefully to some party at the gate for several minutes before the shot was fired."

There was evidence that the insured was when sober a peaceable man and kind to his family; and to hold that his outrageous conduct on this occasion was due to his drinking is the most charitable excuse suggested. The evidence, however, strongly tends to prove that his passions had largely subsided and that he was in a calmer and repentant mood at the time he discharged the gun into his own body by attempting to push open the revolving gate...