Modern Woodmen of America v. Kincheloe

• Decision Date: 09 March 1911
• Docket Number: No. 21,833.,21,833.
• Parties: MODERN WOODMEN OF AMERICA v. KINCHELOE.
• Court: Indiana Supreme Court

175 Ind. 563

94 N.E. 228

MODERN WOODMEN OF AMERICA

v.KINCHELOE.

No. 21,833.

Supreme Court of Indiana.

March 9, 1911.

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

Action by Emily Kincheloe against the Modern Woodmen of America. From a judgment for plaintiff, defendant appeals. Affirmed.

See, also, 93 N. E. 452.

Benjamin D. Smith, Geo. C. Tayler, and Edmund Craig, for appellant. F. P. Leonard and Geo. K. Denton, for appellee.

MORRIS, J.

Transferred from Appellate Court, under clause 2, § 1394, Burns' Ann. St. 1908.

Suit by appellee, beneficiary in a benefit certificate issued by appellant to one Baldwin, grandson of appellee. The certificate provided that the sum of $1,000 should be paid appellee in case of Baldwin's death, unless the same should be caused by suicide. Appellant filed an answer which admitted the death, but alleged that Baldwin committed suicide. This was the only question of fact in issue. There was a trial by jury, resulting in verdict and judgment for appellee.

Appellant relies on two alleged errors of the lower court, viz., the refusal to give to the jury its requested instruction No. 10, and the insufficiency of the evidence to support the verdict on which the judgment rested. Instruction No. 10 requested by appellant is as follows: “A verdict should not be returned and stand as verity in this case upon a mere suggestion of a possibility, and conjecture should not prevail over reason. The line of reasonable probability should be adopted, and a verdict returned according to the truth, regardless of the effects of such a verdict upon the parties to the suit.” Appellant contends that in cases like this, where the sole question is one of suicide, and the evidence is very largely circumstantial, it is highly important that the jury should be instructed, in drawing its inferences from the circumstances proven, to consider the reasonable probability, under all the evidence, of the existence of the facts to be inferred. Appellant's theory, applied to the issue in this cause, is correct, and, if the lower court in other instructions had not substantially covered the ground, the failure here would have been erroneous. But in instruction No. 3 given by the court on its own motion, the jury was instructed that, “in determining the credibility of a witness, you should determine *** the probability or improbability of his testimony. ***” The court gave the jury instruction No. 4, which was requested by appellant and reads as follows: “You are instructed that the presumption of law against suicide may be overturned not only by verbal testimony, but by reasonable deductions from the facts established; that on this question you are to be governed by what is the reasonable probability; that the fact of suicide need not be shown beyond a reasonable doubt,...