Michalek v. Modern Broth. of America
| Decision Date | 20 January 1917 |
| Docket Number | 30957 |
| Citation | 161 N.W. 125,179 Iowa 33 |
| Parties | KATHERINA MICHALEK, Appellant, v. MODERN BROTHERHOOD OF AMERICA, Appellee |
| Court | Iowa Supreme Court |
Appeal from Cedar Rapids Superior Court.--C. B. ROBBINS, Judge.
ACTION at law to recover upon a certificate of life insurance issued by the defendant association on the life of Anthony Michalek. There was a directed verdict and judgment for the defendant and plaintiff appeals.
Reversed.
Milo O Hanzlik, Barnes, Chamberlain & Randall, for appellant.
Grimm & Trewin, and Sam Sparrow, for appellee.
That the defendant is a fraternal insurance or beneficiary association; that Anthony Michalek became a member thereof and received from the association a benefit certificate payable to his wife, the plaintiff; that at the time of his death he was still a member in good standing; and that, except for the matters pleaded by way of an affirmative defense, the defendant would be liable in this action, there is no dispute. Stated briefly, the defense is that Michalek committed suicide and that, by the terms of the contract with the association, it was expressly exempted from liability for a death so caused. Nor is there any dispute on the part of the plaintiff that, in his application for membership, and in the benefit certificate issued to him as a member, Michalek agreed that, in the event of his death by suicide, whether sane or insane, no recovery of benefits or insurance could be had. The one question calling for our decision is whether a case was made upon which the plaintiff was entitled to have the verdict of a jury.
Upon familiar principles, the settled character of which we do not understand appellee to deny, the admitted fact that Michalek died while a member of the association in good standing is sufficient to show the plaintiff entitled to recover, in the absence of evidence tending to support the affirmative plea of suicide. If there be such evidence, then under all ordinary circumstances an issue is disclosed upon which either party is entitled to have the verdict of a jury. It is not to be denied, however, that a case may arise where the showing of suicide is so undisputed, clear and convincing that the court may find the truth of the plea established as a matter of law. Inghram v. National Union, 103 Iowa 395, 72 N.W. 559. Was the defense in this case thus conclusively proved?
Giving the evidence its most favorable construction for the plaintiff, as we are required to do where a verdict is directed for the defendant, the facts attending the death of Michalek, so far as known, are substantially as follows: Deceased was 52 years old, and for 25 years had been employed as head miller in the Quaker Oats Mill in Cedar Rapids. He was a married men, living with his wife and an unmarried son and daughter in a home of their own. On the same lot with their residence were a woodshed and closet; also a chicken house in a yard enclosed by woven wire fencing, where they kept poultry. On week days, it was his practice to leave for his work about 5:30 o'clock. On Sunday, he would usually get up about 6:30 o'clock, feed the poultry, shave, bathe and put on clean clothing. He owned a revolver, which he had brought from California several years before his death. On Saturday, July 4, 1914, the day before he was killed, he and his daughter had done some target shooting with the weapon. So far as appears, his domestic relations were pleasant, he was of a cheerful disposition, and at no times showed indications of melancholy or despondency. There is no showing that he was involved in business or financial difficulties. On Sunday, July 5th, he followed his usual practice, and, after feeding the poultry, shaving and bathing, he sat for a while on the porch, and, in reply to a question by his wife, said that the weather was too hot to go out. During the morning, he sent his daughter to a store near by to procure him a supply of tobacco. He divided this tobacco, putting part in the pocket of the suit he was wearing, and the rest in the pocket of his working suit. He wife says he "appeared to be feeling good," and was "pretty jolly," and neither said nor did anything out of the ordinary. She also testified that they had been troubled with rats, which infested the chicken house, and that Michalek had at times shot at them. About noon, he was seen to go in the direction of the chicken yard and woodshed. His wife heard a shot, and looking out saw the deceased standing upright, with his hand extended in front, pointing toward the chicken house. Seeing this, her first thought was that he was shooting at rats. Then she saw him with his two hands drawn up in front of him, and with one hand whirling or twirling something. This, according to plaintiff's theory, tends to show that he was having trouble with the revolver, and was trying to adjust the cylinder. Very quickly two other shots followed, and she saw her husband stagger and fall. Alarm was at once raised, and the family and neighbors gathered at the scene of the tragedy. Michalek lived a few minutes, but he did not speak.
The mechanism of the revolver is mentioned by several witnesses, but it is not in all respects clear to the reader. It was an automatic, with a cylinder of five chambers. After the shooting, it was found to have three empty chambers and two chambers holding unexploded cartridges. The daughter swears that, when using the revolver on Saturday, she and her father had some trouble in operating it. She says, "We had some difficulty with the revolver that day." Her words are:
"I shot out of the revolver twice, and the third time I pulled the trigger, the revolver would not go off, and I handed it to father and he turned the cylinder and gave it back to me, and I shot it the other three times."
Another witness says that
It is but fair, however, to say that this witness had, on an earlier occasion, found the mechanism in working condition, and he thinks something happened to it after his first inspection.
Another witness says:
"The revolver is out of order, but the safety device is not."
Still another witness, familiar with weapons of this kind, says:
From the date of the shooting until the trial below, the weapon had been kept in the possession of the coroner. Nothing is proved tending to show the deceased to have been insane or intoxicated.
On the other hand, the theory of suicide is based upon the fact that the deceased had in his own hand the weapon which killed him; that, as is claimed, there were three gun shot wounds found in his breast; that it is highly improbable, under the circumstances, that three such wounds could have all been accidentally inflicted; and that the proofs of death filed with the company by or on behalf of the plaintiff admit that the death was by suicide.
That the last mentioned circumstance may be more clearly understood, we will state that, by the rules of the association, upon being notified of the death of a member, the chief secretary is required to send the secretary of the local lodge blank forms to be used in making formal proofs of death. The local secretary then delivers the blanks to the beneficiary. This procedure seems to have been followed. The local secretary, at the request of plaintiff, filled out the blank forms, and plaintiff executed them. Of the questions and answers, two only bear upon the point made by defendant, and are as follows:
Accompanying the affidavit of the plaintiff was another, in which questions were addressed to and answered by a physician. Of these, the following are in point:
The custom or rule of the association appears also to have required the execution of a statement by the officers of the local lodge, supported by another affidavit of the beneficiary. In the present instance, this certificate recited the membership of the deceased in good standing at the time of his death, and that "the cause of his death was said to be suicide." Plaintiff's affidavit sets out the circumstances of the death, and concludes with the statement:
"In my opinion he committed suicide, although I know no reason why he should do it, as there was no trouble in the family or in financial matters."
As a witness on the trial, she says she did not tell the secretary that her husband committed suicide; that she did not read the paper after the blanks were filled, and did not understand them as affirming the fact of suicide, and further explains by saying:
Of the last mentioned statement, accompanying the certificate by the lodge officers, she says, if we understand the record, that the paper was brought to her prepared for her signature; and, while she admits she read it, she further says:
...
To continue reading
Request your trial