Pride v. Interstate Bus. Men's Acc. Ass'n of Des Moines

• Decision Date: 15 November 1927
• Docket Number: No. 38484.,38484.
• Citation: 207 Iowa 167,216 N.W. 62
• Parties: PRIDE v. INTERSTATE BUSINESS MEN'S ACC. ASS'N OF DES MOINES.
• Court: Iowa Supreme Court

207 Iowa 167

216 N.W. 62

PRIDE

v.INTERSTATE BUSINESS MEN'S ACC. ASS'N OF DES MOINES.

No. 38484.

Supreme Court of Iowa.

Nov. 15, 1927.

Appeal from District Court, Delaware County; George W. Wood, Judge.

Action at law to recover upon a policy of accident insurance. The defendant pleaded: (1) A complete defense predicated upon a claim of suicide of the insured; (2) a partial defense predicated upon the terms of the policy, which limited the insurance to “$100, if the loss be sustained as the result of the discharge of a firearm, unless the claimant shall establish the accidental cause of the discharge by the testimony of a person other than the insured or the claimant, who saw the cause in operation at the time of the discharge.”

There was a verdict for the plaintiff for $5,000, being the face of the policy, and judgment was rendered thereon. A motion for a new trial was filed by the defendant, and was overruled. From such order overruling the motion for a new trial, the defendant has appealed. Affirmed.Fred B. Blair and Bronson & Charlton, all of Manchester, and Nourse & Nourse, of Des Moines, for appellant.

McCoy & Beecher, of Waterloo, for appellee.

EVANS, C. J.

We are first confronted with a motion of the appellee to dismiss the appeal because not taken in time within the provisions of section 12832, Code 1924. It appears that the judgment was entered on April 1, 1926. The order overruling the motion for a new trial was entered on August 26, 1926. The appeal was taken November 26, 1926. Our present statute has reduced the time of taking appeal from six months to four months. The controversy is not at that point. Section 12832 provides as follows:

“Appeals from the district * * * courts may be taken to the Supreme Court at any time within four months from the date of the entry of record of the judgment or order appealed from, and not afterwards; but, when a motion for new trial, or in arrest of judgment, or for judgment notwithstanding the verdict has been filed, such time for appeal shall be automatically extended so as to permit the same at any time within sixty days after the entry of the ruling upon such motion.”

Appellant does not claim to have appealed from the judgment, but only from the order overruling the motion for a new trial. The appellee contends that, because such appeal was not taken within 4 months from the entry of the judgment, nor within 60 days after the entry of the order overruling the motion for a new trial, the right of appeal was thereby wholly lost to the appellant. The contention for the appellant is that, because its appeal from the order overruling its motion for a new trial was taken within 4 months from the date of the entry of such order, it was in time within the provisions of the statute above quoted. Appellee construes the quoted section to mean that an appeal from an order overruling a motion for a new trial must be taken either: (1) Within four months from the date of the entry of judgment; or (2) within sixty days from the entry of the order denying a new trial. Appellant construes the “sixty-day” provision of the statute as extending the time for appealing from the original judgment, and not as curtailing the time within which an appeal from an order denying a new trial may be taken.

[1][2][3] It will be noted that the statute in question divides itself into two parts, which are separated by a semicolon. Except as “four months” is substituted for “six months,” the first part of the section is a copy of section 4110, Code 1897. If this part of the section stood alone, then the appellant would have a right to appeal from the order denying a new trial within 4 months after the entry of such order. Such has always been our construction of section 4110, Code 1897. See Frett v. Holdorf, 201 Iowa, 748, 206 N. W. 609. The second part of section 12832, Code 1924, does not purport to curtail in any respect the time for appeal stated in the first part thereof. It does purport to extend the same in a given event. How is such provision for extension to be applied in the construction of the statute as a whole? Keeping in mind the construction which we have always put upon section 4110, Code 1897, we think the effect of this later amendment was to extend the time of appeal from the judgment so as to give the appellant 60 days therefor, after the entry of the order denying the motion for a new trial. If, therefore, the appellant had appealed from the judgment within 60 days after August 26, 1926, it would have been in time. Nor in such event would it have been necessary for it to appeal from the order denying a new trial in so far as its motion for a new trial was predicated upon the record of the trial. But it had a right of appeal from the order denying a new trial under the provisions of subdivision 3, § 12823. And this is so, even though it failed to appeal from the judgment itself. Having such right of appeal, it had the right under the first part of section 12832 to exercise such right of appeal “at any time within four months from the date of the entry of record of the judgment or order appealed from.” The appellant did appeal from such order within 3 months from the time of its entry. It was therefore in time.

II. We now turn to the questions raised on the appeal. The policy sued on was upon the life of Denby Pride. The beneficiary therein was the wife of the insured, who is the plaintiff herein. The insured lost his life as a result of a gunshot wound inflicted about 1 a. m. Sunday morning September 14, 1924, in his own dooryard. The first question is: Was it accidental or suicidal? If accidental, was the event witnessed and was the accidental cause established by a person who saw the cause in operation within the meaning of the policy?

The plaintiff introduced evidence tending to show that, for some weeks prior to the night in question, unknown persons had harassed and threatened the insured, and greatly disturbed the peace of his home by unlawful prowlings and trespasses. Letters had been received by him threatening violence. Two of these letters are in evidence. One of them purports to be signed “K. K. K.”; the other is anonymous. These letters had been reported by the insured to the public authorities. Unknown persons had come upon his premises in the night, and had thrown stones against the house. On three previous occasions beginning in July he had arisen from his bed, and gone out into his yard in search of the prowlers. On two occasions he had carried his small gun of 22 caliber, but had not apprehended any one. On the night of September 13th he came home about 11 p. m. At that time his daughter, a girl of 16, was entertaining a little party of friends, comprising five young couples. This little party was the aftermath of a fraternity banquet that had been held elsewhere earlier in the evening, where a class of boys was initiated into the De Molay fraternity. Representatives of this fraternity were present from Dubuque and perhaps other places. The party included some of the young men of Dubuque, who were waiting for a late train upon which to return to their homes. The insured, being informed by his wife as to the nature of the party, went to bed, whereas the wife remained to await the termination of the festivities of the young people. The bedroom into which the insured went adjoined the kitchen, where his wife was. Shortly thereafter his wife observed him soundly asleep. At about 1:00 to 1:30 a. m. he arose from his bed; passed through the kitchen into his back yard. His gun stood in the corner at the kitchen door, and was taken by him as he went out. He wore a pair of slippers, and was clothed in his nightgown. He appeared to be in search of something or some one. Two of the young men, Wolf and Washburn, were at that time out-of-doors, and about 40 feet distant from him. They saw him stoop over, apparently looking under the porch. He also looked behind a tree. While he was engaged in this kind of activity, each of them heard what appeared to be the crack of a rifle. He continued his apparent search for a short time thereafter, but finally sank to the ground. He was immediately carried to the house, and doctors were summoned. A bullet had penetrated his body from the left front side to the back. A few moments later the gun was picked up from the ground at the place where he was when the rifle crack was heard. He died as a result of the wound within a week. Wolf and Washburn each testified that he saw the insured only dimly in the dark; that he did not at the time know who he was; that he did not see the gun nor any powder flash therefrom. Wolf and Washburn are the witnesses on whose testimony the plaintiff relies as meeting the requireents of the policy heretofore quoted. The contention for the appellant at this point is that such requirements of the policy are not met by such testimony. Concededly, the loss claimed for resulted from the discharge of the firearm. Did Wolf and Washburn, or either of them, “ see the cause in operation at the time of the discharge?” The argument for the appellant is that these witnesses saw virtually nothing; that they simply heard a noise which to them resembled that of a rifle shot; that therefore there was a complete failure of proof at this point. A directed verdict was asked on this ground.

[4][5] The question naturally arises as to what an observer may see when a gun is discharged and a bullet penetrates a nearby object. Surely he does not see the bullet. If the bullet be found in the body of a victim, it is not the eyesight of the witness that tells him where the bullet came from. “The cause in operation” is of course the passing of the bullet from the gun into the body of the injured person. If we accept the interpretation which the appellant puts upon its policy provision, it calls for an impossibility. No person could ever be in position whereby he could see “the cause in operation” within the meaning...