Messersmith v. Supreme Lodge

• Decision Date: 22 June 1915
• Citation: 153 N.W. 989,31 N.D. 163
• Court: North Dakota Supreme Court

153 N.W. 989

31 N.D. 163

CHRISTINA M. MESSERSMITH v. SUPREME LODGE, KNIGHTS OF PYTHIAS

Supreme Court of North Dakota

June 22, 1915

Appeal from the District Court, Stark County, Crawford, J.

Affirmed.

Thomas H. Pugh, for appellant.

The proofs of loss are competent evidence against the party furnishing them, of the cause or extent of a loss, or the cause of death of an insured person, or of any other material fact therein recited; and ordinarily the rule extends to certificates and affidavits of physicians and others, and verdicts of coroners' juries. 7 Enc. Ev. 594; Dennis v. Union Mut. L. Ins. Co. 84 Cal. 570, 24 P. 120; Nelson v. Nederland L. Ins. Co. 110 Iowa 600, 81 N.W. 807; 7 Enc. U.S. S.Ct. 193; Mutual Ben. L. Ins. Co v. Newton, 22 Wall. 32, 22 L. ed. 793; Mutual Ben L. Ins. Co. v. Higginbotham, 95 U.S. 380, 24 L. ed. 499; Buffalo Loan, Trust & S.D. Co. v. Knights Templar & Masonic Mut. Aid Asso. 126 N.Y. 450, 22 Am. St. Rep 839, 27 N.E. 942; Hanna v. Connecticut Mut. L. Ins. Co. 150 N.Y. 530, 44 N.E. 1099; Modern Woodmen v. Von Wald, 6 Kan.App. 231, 49 P. 782; Travelers' Ins. Co. v. Melick, 27 L.R.A. 629, 12 C. C. A. 544, 27 U.S. App. 547, 65 F. 178; McMaster v. Insurance Co. of N. A. 55 N.Y. 228, 14 Am. Rep. 239; Hassencamp v. Mutual Ben. L. Ins. Co. 56 C. C. A. 625, 120 F. 475.

The general rule as to character evidence is applicable here. The proof of the fact of suicide of the insured emanated from the plaintiff, and evidence of disposition, character, mental attainments, or family relations was incompetent and immaterial, as not within the issues. State v. Magill, 19 N.D. 131, 22 L.R.A.(N.S.) 666, 122 N.W. 330; State v. Thoemke, 11 N.D. 387, 92 N.W. 480; 5 Am. & Eng. Enc. Law, 2d ed. 879, 880.

In all proceedings, where the character or particular traits of character are allowed to be shown or proved, the general reputation, the reflex of the community only, may be shown, and not the individual opinion of the witness. Munkers v. Farmers' & M. Ins. Co. 30 Ore. 211, 46 P. 850; Abbott, Trial Brief, 236.

L. A. Simpson, for respondent.

The proofs of death, which are the work of the defendant, even though they showed that death was by suicide, would not be binding on plaintiff, but were subject to corrections of honest mistakes, and such corrections and explanations could properly be made at and upon the trial. Dischner v. Piqua Mut. Aid & Acci. Asso. 14 S.D. 436, 85 N.W. 998; Supreme Tent, K. M. v. Stensland, 206 Ill. 124, 99 Am. St. Rep. 137, 68 N.E. 1098.

Where the cause of death is called in question, the proofs of death are not binding upon either party. Knights Templars & M. Life Indemnity Co. v. Croyton, 209 Ill. 550, 70 N.E. 1066.

Suicide or self-destruction must be intentional, in order to defeat recovery, under the usual stipulation in such policies of insurance. 25 Cyc. 878, P "D;" Paulsen v. Modern Woodmen, 21 N.D. 235, 130 N.W. 231; Soules v. Brotherhood of American Yeomen, 19 N.D. 23, 120 N.W. 760.

The presumption is that the insured did not commit suicide, and the burden is upon the defendant to overcome such presumption. Ordinarily, the question is strictly one for the jury. Any inferences to be drawn from the evidence would not justify the jury in finding that death was caused by suicide. Mutual L. Ins. Co. v. Wiswell, 56 Kan. 765, 35 L.R.A. 258, 44 P. 996; Mutual L. Ins. Co. v. Daviess, 87 Ky. 541, 9 S.W. 812; Standard Life & Acci. Ins. Co. v. Thornton, 49 L.R.A. 116, 40 C. C. A. 564, 100 F. 582.

The law fixes upon the defendant claiming suicide the burden of proving such fact by a preponderance of the evidence. Brown v. Sun L. Ins. Co. Tenn. , 51 L.R.A. 252, 57 S.W. 415; Boynton v. Equitable Life Assur. Soc. 105 La. 202, 52 L.R.A. 687, 29 So. 490.

Where the evidence as to the cause of death is conflicting, and is such that different minds might reasonably come to different conclusions, the question is for the jury. Courtemanche v. Supreme Court, I. O. F. 136 Mich. 30, 64 L.R.A. 668, 112 Am. St. Rep. 345, 98 N.W. 749; Modern Woodmen v. Kozak, 63 Neb. 146, 88 N.W. 248.

The defense of suicide is an affirmative one, and the burden was upon defendant to substantiate it by a preponderance of the evidence. Leman v. Manhattan L. Ins. Co. 46 La.Ann. 1189, 24 L.R.A. 589, 49 Am. St. Rep. 348, 15 So. 388; Travelers' Ins. Co. v. Melick, 27 L.R.A. 629, 12 C. C. A. 544, 27 U.S. App. 547, 65 F. 178.

OPINION

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 "gunshot 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 question 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) 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 reflex 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) 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) 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 men." 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...