Messersmith v. Supreme Lodge Knights of Pythias

• Decision Date: 22 June 1915
• Citation: 153 N.W. 989,31 N.D. 163
• Parties: MESSERSMITH v. SUPREME LODGE KNIGHTS OF PYTHIAS.
• Court: North Dakota Supreme Court

31 N.D. 163

153 N.W. 989

MESSERSMITH

v.SUPREME LODGE KNIGHTS OF PYTHIAS.

Supreme Court of North Dakota.

June 22, 1915.

Syllabus by the Court.

Action upon life insurance policy. The existence of the policy and death of insured admitted. Defendant offered no evidence excepting the proofs of death, which are alleged to contain admission of suicide.

The issue for the jury was whether or not the insured had in fact suicided. The proofs of death were admitted merely as evidence upon that point. Certain evidence tending to show the spirits, health, and domestic relations of the insured just prior to his death, was properly admitted.

Evidence that the insured was the father of his first child, two months of age, was properly admitted. There was no error in the statement of plaintiff's attorney to the court in answer to an objection to said evidence, as follows: “I have a right to show that his domestic life was happy; that he was a young married man; that he was in superb health.”

There was no error in admitting evidence that insured was successful in business and was a man of scholarly attainments.

Statements made by insured immediately before he left his family and almost immediately before his death are admissible as part of the res gestæ.

There was no error in rejection of a letter written by the defendant to its local secretary, which letter plaintiff denied having ever seen.

Evidence examined, and found sufficient to justify its submission to the jury, and supports the verdict.

Appeal from District Court, Stark County; Crawford, Judge.

Action by Christina M. Messersmith against the Supreme Lodge Knights of Pythias. From a judgment for plaintiff, defendant appeals. Affirmed.Thomas H. Pugh, of Dickinson, for appellant. L. A. Simpson, of Dickinson, for respondent.

BURKE, J.

This is an action upon a life insurance policy. The defense is that the insured suicided. Plaintiff had judgment. Defendant appeals. The errors claimed relate to the admission of testimony relative to deceased's family and business affairs and to the refusal of the trial court to direct a verdict for defendant. The beneficiary, the wife of the insured, submitted written proofs in which the cause of death was given as “gun-shot wound, self-inflicted.” Upon the trial, said beneficiary was a witness and denied that she knew said answer was in the proofs of death at the time her signature was attached. The physician, likewise, receded somewhat from his earlier certificate, and it was conceded by both parties that the quesion of whether or not deceased was a suicide was the gist of the action. It is conceded that the proofs of death were properly admitted as prima facie evidence of the material facts therein shown, but that such evidence is not conclusive, but might be rebutted.

[1] 1. While upon the stand as a witness in her own behalf, plaintiff was asked the following questions by her attorney:

“Q. You and your husband were happy together up to the time of his death, Mrs. Messersmith?” Also: “Q. I will ask you to state, Mrs. Messersmith, whether your husband during all that time and while in your presence was in his usual good spirits.” Also: “Q. I will ask you to state whether or not you observed anything unusual in his manner.”

The witness Reichert was also asked:

“Q. Whether he appeared in his usual spirits.” And: “Q. Whether you noticed anything unusual in his manner or action that day.”

The witness Mrs. Carroll was also asked some questions:

“Q. Do you know whether or not his domestic relations were happy?”

The witness Mrs. Simpson was asked:

“Q. Whether or not your brother upon that occasion (a few hours before his death) appeared in his usual frame of mind.” And: “Q. Can you tell us whether his domestic relations were happy always up to the time of his death, and, if so, state whether they were or not.” Also: “Now, I will ask you to state whether or not he was in his usual frame of mind when he left the house, or usual spirits?”

All of this testimony is objected to upon the grounds that it did not bear upon the general reputation of the deceased, nor upon his character, those being not in issue; that the testimony sought to draw out special instances of the temperamental disposition of the deceased, and is the opinion of the witness testifying, and not the reflection of the community in which he lived; and that the fact to be found was whether or not deceased suicided and the temperamental disposition, character, and mental attainments of the assured were not pertinent to the issues. Appellant contends that, inasmuch as the proofs of loss which were in evidence stated that death had resulted from suicide, the direct issue was rebuttal of said proofs, and that the questions complained of could only be relevant in the event the defendant had first undertaken to show a motive for the suicide. We do not believe there was any error in the admission of the questions before mentioned. The incidents related occurred the afternoon of his death. They all tended to show his mental condition and had a direct bearing upon the probability of suicide. As we view the matter, the insurance policy and the death were conceded. The burden, then, was upon the defendant to prove the exemption from liability afforded them if the insured had in fact committed suicide. This burden they met by an offer in evidence of the proofs of death, signed by the beneficiary, who in her turn had a right to rebut this testimony, and this she attempted to do by showing facts and circumstances to lead the jury to believe suicide was impossible. We believe the evidence was properly admitted.

[2] 2. Plaintiff was asked, “Q. How old was your baby at the time of your husband's death?” and was allowed to answer, over objection, that it was about two months old. During the argument upon this objection, plaintiff's counsel stated to the court in the hearing of the jury:

“I have the right to show that his domestic life was happy; that he was a young married man; that he was in superb health.”

This remark of counsel was objected to as being prejudicial and an attempt to prejudice the jury and was “the heaping of fuel upon the sympathies and sentiments of the jurors, who were sitting to determine a way to compel the insurance company to pay.” It will be noticed that the remark was not made to the jury, but to the court in argument upon objection interposed to a question which he had just asked the witness. We fail to see the slightest indication of any attempt to bias or prejudice the jury. There is no error in the incident.

[3] 3. Appellant complains of the following questions propounded to the plaintiff:

“Q. Was your husband enjoying a successful and prosperous practice in his profession at this time? (Objection.)”

And also the following question asked of the witness Reichert:

“Q. Mr. Reichert, you have stated that you knew Mr. Messersmith very well. I will ask you to state whether or not he was a scholarly or an illiterate man.”

Practically the same objection disposed of in paragraph 1 was made to those questions. They both have their bearing, though possibly slight, upon the probability of the suicide, and were admissible.

[4] 4. This assignment challenges two questions, one asked of the witness Mrs. Carroll, and relates to the time deceased left his sister's home a few moments before his death. The questions are:

“Q. What did Mr. Messersmith say, if you remember, as to what he was going to do when he left the house? A. He said that he was going down to the house to fix the fire so the house would be warm and he would come back and get his wife and baby.”

The other question was asked of Mrs. Simpson:

“Q. As he left the house, if you heard and know, please state what reason was assigned for his leaving. A. He went down to his little house for the purpose of rebuilding the fires, or looking after the fires, so it would be warm for his wife and baby.”

Appellant in his brief says:

“We submit that, unless it were shown that the statements were made by the deceased in the belief that he was in imminent danger of losing his life or that death was rapidly approaching, the testimony is not competent to the issues in this case, as part of the res gestæ.”

Appellant is invoking an entirely foreign rule. The statement of deceased was not sought for its substance-to prove or disprove any fact. They did not care for the substance of his remarks, but desired to know the condition of his mind. What he said, like his action and general demeanor, had a bearing upon his mental condition, and was admissible. Plaintiff had the right to disprove not only the admission in proofs of death, but to disprove the fact of suicide itself.

[5] 5. The fifth assignment of error relates to the rejection of the following question asked of the witness Harleman, who was apparently the secretary of the local K. P. Lodge, and who as such had helped prepare the proofs of death. The question is:

“Q. I show you Exhibit W, and ask you if that is the letter that you received and that you read or permitted Mrs. Messersmith to read relative to the matters you testify to?”

Exhibit W being a letter from the defendant to its local secretary, which called attention to the statement in the proofs of death relative to the gunshot wound and allowing her to make further proof if she desired. The plaintiff had already denied that said letter had been either shown or read to her or in any manner called to her attention. The witness Harleman was allowed to testify that he had shown her the letter and read it to her and had informed her that she might make such further proof. This was gone into fully. We quote from the record:

“Q. And did you show her the letter or read it to her? A. I read it to her. Q. And you informed her she might make such further proof as she desired? A. I read the entire letter to her that I received from them. Q. About how long was that after the first proof was sent in after these proofs had...