Richey v. The Woodmen of World

• Decision Date: 01 April 1912
• Citation: 146 S.W. 461,163 Mo.App. 235
• Parties: MARY RICHEY, Respondent, v. THE WOODMEN OF THE WORLD, Appellant
• Court: Kansas Court of Appeals

146 S.W. 461

163 Mo.App. 235

MARY RICHEY, Respondent, v. THE WOODMEN OF THE WORLD, Appellant

Court of Appeals of Missouri, Kansas City

April 1, 1912

Appeal from Nodaway Circuit Court.--Hon. William C. Ellison, Judge.

REVERSED.

Judgment reversed.

A. H Burnett and Shinabarger, Blagg & Ellison for appellant.

(1) The court erred in refusing to give appellant's peremptory instruction at the close of all the evidence. Egan v Ins. Co., 80 N.W. 1020, 105 Wis. 217; Thiebaud v Woodmen of the World, 69 P. 348, 65 Kan. 332; W. O. W. v. Hruby, 96 N.W. 998; W. O. W. v. Huyler, 24 Ind.App. 109; Mason v. Supreme Lodge, 109 Ill.App. 10; Fletcher v. Sovereign Camp, 81 Miss. 249. Same facts passed on in 78 Miss. 377 and 111 F. 773. (2) The verdict and judgment were against the evidence, the proof of suicide being so clear as to leave no issue to submit to the jury, in view of the note, which was properly admitted in evidence. Rogers v. Life Asso., 71 P. 348, 138 Cal. 285; Sharland v. Washington Life, 101 F. 206; Rens v. Relief Asso., 71 N.W. 991; Mutual Life v. Hayward, 37 S.W. 36.

C. C. Crow, John E. Owen and B. Raleigh Martin for respondent.

Appellant does not cite a single Missouri authority to sustain its position on the facts in this case. By a long line of decisions in this state the question here submitted has been finally settled, whatever rule the court of other states may have adopted. It is not necessary to cite numerous decisions to sustain the ruling of the trial court in this case, for the reason that this court in two recent decisions has reviewed all the law on the subject and set at rest all question about the rule in this state. Almond v. Modern Woodmen, 133 Mo.App. 382; Claver v. Woodmen of the World, 152 Mo.App. 155.

OPINION

JOHNSON, J.

This suit is on a death benefit certificate issued by a fraternal beneficiary association incorporated in Nebraska and licensed to do business in this state. The certificate contains a stipulation against suicide and the sole issue submitted to the jury was whether or not the death of the holder was self-inflicted with suicidal intent. The jury decided that issue in favor of plaintiff and defendant, appealing from the judgment rendered on that verdict, asks us to hold as a matter of law that the defense of suicide indisputably was proved.

Plaintiff, the beneficiary named in the certificate, is the widow of Philip S. Richey who died at his home in Nodaway county on the morning of January 25, 1909. In the two months preceding his death Richey, who was forty-two years old and in good health, increased his life insurance from $ 1000 to $ 7000. A policy of $ 2000 was issued to him by an old line company and the remainder of the increase consisted of certificates issued by fraternal beneficiary associations, among them the certificate in question.

Richey was a farmer living on a rented place and his family was composed of himself, his wife and their seven children. He was unsuccessful as a farmer, was overburdened with debt, and was planning to move to a farm of forty acres which he owned but which was encumbered by a mortgage of $ 400. He had contracted with his father-in-law for the purchase of an adjoining tract of forty acres at thirty-six dollars per acre and intended to add that tract to his farm. He was an amiable, even-tempered man, though somewhat taciturn, and was a kind and affectionate husband and father. He did not betray discouragement over his failures and pecuniary embarrassment, was proceeding in a rational and rather hopeful manner with his plans for the future, and neither by word nor act had disclosed any intention or even thought of self-slaughter. A few moments before his death he started from his house to the barn to water the stock. There was nothing unusual in his demeanor and on leaving the house he addressed a jocular remark to his wife. He passed by his eldest son and two neighbor boys who were sharpening an ax at a grindstone and asked his son if a certain horse in the barn had been watered. Receiving a negative reply he said he would water the horse and went on to the barn which was a hundred yards or more beyond the grindstone. Immediately after he disappeared into the barn the boys heard him cry in distress and, supposing he had been kicked by the horse, one of the boys ran to his assistance and found him in the passageway of the barn in the throes of death. In a moment he expired and the boy ran to the house and told plaintiff of the tragedy and then hurried home to spread the news. Plaintiff and her children rushed to the barn and in a few minutes the neighbors began to arrive. The cause of the death of the unfortunate man was apparent and is conceded. He drank carbolic acid from a two ounce vial and the only point in dispute is whether he took the poison by mistake or with the intent to end his life. The vial was found outside the barn where, doubtless, the deceased had thrown it, and a few drops of the poison still remained in it. The mouth and chin of the deceased were badly burned and all of the testimony including that of physicians who examined the body, is to the effect that the burns were caused by carbolic acid. Plaintiff testified that her husband had been suffering from a mild attack of grippe and for several days had been taking medicine; that she had prepared a cough remedy from mullein leaves for him which she had put into a small bottle; that he had procured another bottle of medicine from a physician, that these bottles were kept on a shelf with other medicines and drugs and that among them were two small bottles of carbolic acid. The bottle found outside the barn had a fresh label and a new cork, showing that it had been recently purchased and plaintiff does not say that it was one of the bottles kept on the shelf nor does she say that she found one of the bottles of poison missing from the shelf after the death of her husband. Defendant contends that when plaintiff and her family arrived at the scene of death they found a note in the handwriting of deceased pinned to the lapel of his coat and that plaintiff removed the note and exhibited it to neighbors who assembled. Defendant served notice on plaintiff to produce the note but she failed to produce it and stated that she had no such note in her possession. Thereupon defendant introduced evidence showing that such note was found and when last known to be existent was in the possession of plaintiff. The court then permitted defendant to introduce secondary evidence of the contents of the note. We think it important to speak of that evidence in detail. The note was as follows:

"Dear Wife: I am sorry to leave you, but I feet impelled to do so. You are the best woman in the world. Raise all the children in the right way. I think it best that I leave this world."

Only one of the boys at the grindstone went to the assistance of Richey in response to his cry and, as stated, he was in the barn only a moment. After giving the alarm he went home and did not return until after neighbors had collected and the body had been removed to the house. He testified: "I went home after ten o'clock that day. I didn't see or hear a note read that day that I recollect of. I was not present at any time anything of that kind occurred. When I came back down to the Richey's after I had gone home I was just around there with the boys, Elmer Richey and Luther Belcher. My brother Jesse didn't come back. I was around the woodpile and didn't go in the house a great deal. The older people--neighbors--were in the house. When I came from the barn after having found Mr. Richey, I told Mrs. Richey. She and the children started toward the barn, running, I believe. Elmer and the rest of the children were with her. Elmer is older than I am, I think. None of the boys or girls in the family were older than he was. All of them started out toward the barn. I don't know who was the next person who got to the Richey place after I was there. I saw Dr. Martin or Mr. Croy or Mr. Taylor, or some other people on the road after I got home."

Mrs. Croy, a neighbor, introduced by defendant, testified that she and her husband arrived at the Richey home before the body had been removed from the barn to the house. We quote from her testimony:

"You may tell the court and jury whether or not Mrs. Richey told you after you went down there, anything about having found a note pinned on the body--on the coat of Mr. Richey? . . . She told me about a note and showed it to me at that time. I had hold of it and tried to read it, but I had forgotten my glasses and couldn't read it very well. Mrs. Mort Smith read it aloud in my presence. I talked to Mrs. Richey about the cause of her husband's death. . . . Q. What did she say to you in that connection? A. I don't just remember now. Q. Just as nearly as you can? A. Which do you mean? Q. About how Mr. Richey came to his death. A. Well, I don't know that she really said anything about how he came to his death. She seemed to know that I knew it. Q. What did she say? A. Well, I can't remember now what she said. . . . Q. Can you give the substance of what she said? A. Which? The substance of the note? Q. Yes. Of what Mrs. Richey said in connection with the note A. I don't fairly understand you. What do you mean? Q. Can you tell anything she said in connection with reading the note? A. What she said of the note--what was in it? . . . Q. What, if anything, did she say to you in that connection? A. She told me to put it away and take care of it. Q. What, if anything, about publishing it?"

By the Court: "Hold on a minute. Told you to put it away and take care of it? A. Yes, sir. She told me to take it and care for it."

By the Court: "Well, did you? A. Yes, sir."

By the Court: "Have you got it? A....