Modern Woodmen of America v. Kincheloe

• Decision Date: 01 June 1910
• Docket Number: No. 6,972.,6,972.
• Citation: 91 N.E. 976
• Parties: MODERN WOODMEN OF AMERICA v. KINCHELOE.
• Court: Indiana Appellate Court

91 N.E. 976

MODERN WOODMEN OF AMERICA

v.KINCHELOE.

No. 6,972.¹

Appellate Court of Indiana.

June 1, 1910.

Appeal from Circuit Court, Posey County; Walter S. Jackson, Special Judge.

Action by Emily Kincheloe against the Modern Woodmen of America. Judgement for plaintiff, and defendant appeals. Affirmed.

Benjamin D. Smith, George C. Taylor, and Edmund L. Craig, for appellant. F. P. Leonard and Geo. K. Dunton, for appellee.

WATSON, J.

This was an action brought by appellee against appellant to recover the sum of $1,000 upon a benefit certificate issued by appellant on the 2d day of March, 1906, to William R. Baldwin, grandson of appellee. The complaint alleges the death of the insured on the 3d day of December, 1906; the performance by appellee and by the deceased member of all the conditions of the contract of insurance. Appellant filed an answer in one paragraph, admitting the issuance of the certificate to said William R. Baldwin; his death, and proofs thereof by appellee, but averred that said William R. Baldwin committed suicide within three years after said certificate was issued to him in violation of the provisions of the contract. To this paragraph of answer appellee filed a reply in general denial. The cause was submitted to a jury, who returned a verdict in favor of the appellee in the sum of $1,071.50, upon which judgment was rendered. Motion for a new trial was overruled, and an appeal taken to this court. The error assigned is that the court erred in overruling appellant's motion for a new trial.

It is disclosed by the record in this case that the insured, who was in his 20th year, left his home on the morning of the accident to go to Coon Kincheloe's to gather corn, in accordance with arrangements theretofore made; that he stopped at the home of Mrs. Chastine, which was a short distance from the home of his grandmother with whom he lived, and asked Jesse Chastine, a boy 16 years of age, to see the small target gun, 22 caliber, his mother bought for him some two weeks before; that he asked if the gun would shoot through a plank, whereupon they tried it to see if it would shoot through a paling on the fence. The insured then asked Jesse to go rabbit hunting, but he declined, for the reason that he had to go to school. Jesse told the insured that a good place to shoot rabbits was on the west side of the road in a weed field. Insured asked if he thought rabbits could be found in the orchard, and Jesse said he did not know. The insured then took the gun, and said he would go down in the orchard to see if he could jump a rabbit. He had been gone about 20 minutes when a shot was heard by Mrs. Chastine, who said she supposed Roy had got a rabbit. Mrs. Chastine and Jesse said insured acted entirely natural that morning. The insured was found under an apple tree, lying on his face with the gun under him. He was found by a party of some ten or twelve, some of whom testified as to the condition of his clothing at the time he was found; that his coat or blouse was unbuttoned; that both the outer and under shirt were unbuttoned, and the place where he received the wound was powder-burned.

The evidence also shows that the insured was clerk of the local camp of defendant, and within a short time would be required to settle with his successor. There is a conflict in the evidence as to whether or not he was short a few dollars in his accounts. It is also shown that he complained of his grandmother being too strict with him in that she did not permit him to go to dances, and that he said at one time he would rather be dead that to live the way his grandmother required him to live, but a short time before that accident he thanked his grandmother for the way she had brought him up. He was a quiet, sober, honest, industrious boy, raised by his grandmother according to her religious principles. It is also shown that, on Saturday night before, he went to the store and made some necessary purchases of clothing; that on Sunday following he and his grandmother took dinner with a neighbor, Robert Green, and both Mr. and Mrs. Green testified that the conduct of the boy on Sunday was natural, and he acted just as he always did. Also, that on the same evening he visited Walter Wiley, who was the treasurer of the camp, to turn over some money belonging to the...