Krogh v. Modern Brotherhood of Am.

• Decision Date: 29 April 1913
• Citation: 153 Wis. 397,141 N.W. 276
• Parties: KROGH v. MODERN BROTHERHOOD OF AMERICA.
• Court: Wisconsin Supreme Court

153 Wis. 397

141 N.W. 276

KROGH

v.MODERN BROTHERHOOD OF AMERICA.

Supreme Court of Wisconsin.

April 29, 1913.

Appeal from Circuit Court, Waupaca County; Byron B. Park, Judge.

Action by Ida May Krogh against the Modern Brotherhood of America. Judgment for plaintiff, and defendant appeals. Affirmed.

The defendant is a fraternal benefit association organized and doing business under and by virtue of the laws of Iowa, and as such organization is lawfully admitted to transact business in this state. On September 14, 1908, it issued to William Krogh, the husband of the plaintiff herein, a certificate of insurance upon his life which entitled the beneficiary, Ida Krogh, his wife, to participate in the mortuary fund to the amount of one full assessment on all members in good standing in the fraternity, not to exceed $1,000. The certificate also provided that if the holder thereof should die by his own hands, whether sane or insane, then it should be null and void and of no effect, and that all moneys paid or rights accrued thereunder should be absolutely forfeited. William Krogh died on June 6, 1911. Proofs of death were furnished defendant, and upon its failure to pay the insurance within the time specified in the certificate an action at law was brought thereon. The defendant set up the defense that William Krogh died by an intentional act of his own hand. The jury found (1) that the death of William Krogh was not caused by suicide, and (2) that he was sane at the time of his death. Judgment for the full amount of $1,000 was entered in favor of the plaintiff, from which the defendant appealed.Allen V. Classon, of Oconto, for appellant.

E. L. & E. E. Browne and Lloyd D. Smith, all of Waupaca, for respondent.

VINJE, J. (after stating the facts as above).

The defendant assigns as errors: (1) That the evidence fails to sustain the finding that the insured did not commit suicide; (2) that the court erred in refusing to receive in evidence the verdict of the coroner's inquest; and (3) that if plaintiff is entitled to recover she can recover only nominal damages.

[1][2] 1. William Krogh was about 42 years old at the time of his death. He had been a stone mason for a number of years, and for a year previous to his death had been suffering some from chronic bowel trouble and had consulted several doctors with reference thereto. On the morning of his death he had been given a thorough examination by Dr. Wood, who testified: “He appeared very natural, very rational. I did not find any indication of any serious trouble, and I told him he would get better.” On his return from the doctor's office he brought a bottle of medicine, put it on a desk in the house, and went to his shop, situatedfrom 75 to 100 feet to the rear of the house. He was somewhat of a carpenter, and when not working at his trade as a mason would spend a good deal of his time in the shop. He was married in 1904 and lived happily with his wife, owed no one anything, and had about $100 in the bank. There was some evidence that he was at times depressed and suffered somewhat from melancholy; that three days or so before his death, without any cause, he accused one of his best friends of slandering him. The day before his death he worked in the garden. The next morning he got up at 6 o'clock, his usual time, had his breakfast, and then helped his wife wash the breakfast dishes. She noticed nothing peculiar about him. He seemed as he always did. About 15 minutes after he left the house on his return from the doctor's office, his wife had occasion to pass the shop door. On looking in, she found her husband lying on the floor, three or four feet back from the door, with a revolver on the right side of him about five feet distant. Deceased was a right-handed man. The revolver was a 38-caliber double action, one that could be discharged by pulling the trigger. One chamber was empty. The barrel had been sawed or filed off. He had owned it since he was married, and usually kept it in a desk in the dining room. Mrs. Krogh thinks he did not get it from the desk that morning. The bullet wound was on the left side of the breast, a little to the right of the left nipple. His clothing around the wound was on fire, and the hole in the clothing was about the size of a silver dollar. The bullet was not extracted or probed for, and its direction in the body is not disclosed by the evidence. He was not dead when found, but expired shortly afterwards without making any statement or regaining consciousness. Several persons who knew him intimately testified that they had noticed nothing abnormal about him previous to his death. Immediately after his death the agents of the defendant made out proofs of death, signed by the plaintiff, wherein it was stated that the deceased came to his death voluntarily and intentionally, by his own hand. Subsequently the plaintiff sent amended proofs of death, wherein she said that she did not understand the full meaning of the statement contained in the first proof and that she had no knowledge or belief that Krogh met his death voluntarily by his own hand.

Such, in brief, is the evidence showing the conditions and circumstances under which the insured came to his death. That such conditions and circumstances are in many respects consistent with the theory of suicide must be admitted. But they are equally consistent with accidental death. That he died as the result of a bullet wound from the revolver found beside him, discharged by himself, seems quite certain. Whether such discharge was intentional or accidental is the only mooted question. The wound was in a place where it could have been intentionally self-inflicted. It was likewise in a place where it could have been accidentally self-inflicted. In either case, if the revolver happened to be held close to the person, the result as found would or might have followed. So we can reach no conclusion from the location or nature of the wound as to whether it was intentionally or accidentally inflicted. It may be said to be strange that a revolver should be so held that if accidentally discharged it would result in a wound like the one in question. The answer is that most strange cases of accidental shooting with revolvers do occur, especially with such a short one as this was; and that men, be they never so careful, at times meet with accidents that seem quite improbable.

The evidence fails to disclose any sufficient or satisfactory reason for suicide. The insured had no financial or domestic troubles of any kind so far as is shown. His disposition seems to have always been an even one. He was a man who was quiet and self-contained, though not of a brooding nature, and aside from a partial impairment of health for the last year there was discovered nothing abnormal about him. He purchased a bottle of medicine for himself the morning he died, presumably after the visit to the doctor. That he should do so intending suicide seems hardly probable. However, it must be conceded that the theory against suicide, aside from the presumption of law that obtains against it, based upon the whole evidence, is not entirely satisfactory. Neither does an hypothesis in favor of suicide meet all the conditions of the evidence. In this situation resort must be had to the legal presumption that where death occurs under such circumstances that it may or may not have been caused by suicide it will be presumed to have been unintentional, and the burden rests upon the defendant to prove the contrary. Agen v. Metropolitan Life Ins. Co., 105 Wis. 217, 80 N. W. 1020, 76 Am. St. Rep. 905;Rohloff v. Aid Association for Lutherans, etc., 130 Wis. 61, 109 N. W. 989;Cady v. Fidelity & Casualty Co., 134 Wis. 322, 113 N. W. 967, 17 L. R. A. (N. S.) 260. The defendant has not met that burden here. Especially must it be so held where the jury has found against it and the verdict to that effect has the approval of the trial court. In addition to the cases cited above, counsel for respondent calls our attention to the following cases from other...