Rodskier v. Nw. Mut. Life Ins. Co. of Milwaukee, Wis.

• Decision Date: 09 May 1933
• Docket Number: No. 41801.,41801.
• Citation: 248 N.W. 295,216 Iowa 121
• Parties: RODSKIER v. NORTHWESTERN MUT. LIFE INS. CO. OF MILWAUKEE, WIS.
• Court: Iowa Supreme Court

216 Iowa 121

248 N.W. 295

RODSKIER

v.NORTHWESTERN MUT. LIFE INS. CO. OF MILWAUKEE, WIS.

No. 41801.

Supreme Court of Iowa.

May 9, 1933.

Appeal from District Court, Linn County; John T. Moffit, Judge.

This is an action at law to recover on a life insurance policy. The defendant claimed the evidence was insufficient to establish insured's death. The case was tried to the court without a jury, resulting in a judgment for plaintiff in the sum of $929.73. Defendant appeals.

Affirmed.Deacon, Sargent, Spangler & Hutchison, of Cedar Rapids, for appellant.

Wm. W. Crissman, of Cedar Rapids, for appellee.

KINTZINGER, Justice.

Plaintiff's husband took out a $1,000 life policy in defendant company in November, 1910. His mother was the beneficiary until after his marriage, when the beneficiary was changed to his wife. The policy was fully paid up. The insured left home February 7, 1921, and was never seen since. He was forty-two years old when he left.

He was happily married having a wife and two children, for whom he had great affection. They were married in April, 1913, and lived together until he left. At the time of his disappearance he was not in good health and, prior to leaving, had lost about twenty-five pounds. When he left he told his wife that he was going to Cleveland to look for a position. The insured had been cashier of a bank and lived at Spragueville, Iowa, for several years. It was conceded he was short about $10,000 in his accounts at the bank, and the evidence fully shows he left home on account of his defalcations.

Although he told his wife he was going to Cleveland, it is apparent he never went there, because he wrote Mr. Stromeyer, the president of the Spragueville Bank, on February 9, 1921, from New Orleans, La., admitting his defalcations in the bank and that he was on his way to Central America. In this letter he said:

“The money was lost in speculations-that dated back several years. * * * I gambled with money that did not belong to me and lost, but I always hoped that I would win and pay it back. How much I despise myself you can best realize. Whenever I think of my family-My God it is enough to make any man crazy-and if it had not been for my family I would have made a clean breast of it long ago and taken my punishment.

A. E. Rodskier.”

The plaintiff admitted receiving a letter from her husband dated at New Orleans, February 14, 1921. That was the last letter she ever received from him. This letter was not admitted in evidence, because of its being a privileged communication. Another letter was received from him on the same day by the president of the bank.

After he left, plaintiff moved to Cedar Rapids. The insured's mother, his surviving parent, lived in Denmark. Plaintiff made inquiry to learn his whereabouts from her and other relatives and neighbor friends in Denmark. She also inquired about him from other local friends, and a Mr. Moeller who was a very close friend of her husband, and with whom she thought he might possibly communicate. She also made inquiries about him from his brother-in-law, Mr. Nelson.

In addition to this, she employed Attorney Redmond of Cedar Rapids to locate him if possible. The people she made inquiries of were the only people that her husband would be likely to write to; that he was reticent and not in the habit of making friends easily. She never received any information of his whereabouts from any of the people she made inquiries of since 1921. In response to inquiries made from his mother and sister in Denmark, she received several letters, substantially as follows:

Exhibit 2.

“Logstor, April 26, 1922.

My very dear Daughter:

I don't understand Aage. The last time I had a letter from him, he wrote: You don't understand how I suffer, and when will I get to see those whom I love. He could write to you but perhaps he will not reveal where he is. Would God that you may hear something before long. This suspense is terrible. Accept then the sincerest greetings and kisses from your old mother.

Antoinette.”

Exhibit 3.

“Logstor, June 23, 1922.

Very sorry to hear about Aage's silence. I don't understand him, but I believe that he is suffering greatly, my poor, dear Aage! No, my dear Charlotte, you are greatly mistaken if you think that I know anything about his whereabouts or condition. I have received only one single letter. You may be sure that if I hear anything about Aage, I will let you know at once. I wish that would happen soon. In the letter he asked me for money. He wrote about how unhappy he was; that he went to South America, and that I would hear from him when he had succeeded in getting a position so he could see his dear ones again. O, Charlotte, be sure that he is suffering greatly from being away from those whom he loves.”

Exhibit 4.

“Logstor, Febr. 5, 1923.

May God bring you the dear Aage back-well and hearty-that is my wish for you and your small children.”

Exhibit 5.

“Logstor, May 14th, 1923.

If you have not heard anything yet, then I do not believe that my dear son is among the living. May God give him comfort, however it is with him! He wrote me at that time, that I should hear from him when he had secured a position, so he could support his family. O, how he must suffer, my poor, dear son, when I recall with what love he spoke about you all. Your true and

Sincere grandmother.”

Exhibit 6.

“Logstor, Nov. 22.

My very dear Charlotte:

I have prayed to the Lord for you, hoping that He will make it lighter for you and turn everything to the good. O, dear Charlotte! Have you not heard anything from our dear Aage? But I am afraid you have not or you would have let me know; his picture is standing beside me on my work table, and often I say: ‘O, Aage, if I only knew how you are doing.’ I wonder if I shall live to see you reunited and happy.

Your old mother.”

His mother died since, and plaintiff heard nothing further.

Attorney Redmond also wrote a letter to the insured's mother in Denmark in 1923 or 1924; and some letters to Judge Ely of Maquoketa, who had been the insured's attorney before his departure. Attorney Redmond also spent considerable time in making an investigation to learn his whereabouts; and kept it up more or less ever since. He tried every way that occurred to him to get into communication with him. During his investigation he learned that nobody who knew him, none of his friends or relatives, knew where he was, or heard anything from him, or knew if he was living or dead.

Plaintiff filed due proof of her claim with the defendant company claiming the insurance because of the insured's death based on his disappearance and unexplained absence from his last known place of residence for more than seven years.

Appellant assigns twenty-seven errors as grounds for reversal. Twenty-four of these errors are based upon the court's ruling on the admission or exclusion of evidence.

I. Plaintiff testified on cross-examination that she received a letter from her husband on February 14, 1921. Defendant had this letter identified as ““Defendant's Exhibit A” and offered it in evidence as part of the cross-examination. Objection thereto was sustained as being a privileged communication between husband and wife.

Section 11262, Code, provides: “Neither husband nor wife can be examined in any case as to any communication made by the one to the other while married.”

[1] It is the settled law in this state and other jurisdictions that all communications between a husband and wife during their married life are privileged. Hertrich v. Hertrich, 114 Iowa, 643, 87 N. W. 689, 89 Am. St. Rep. 389;Sutcliffe v. Iowa State Trav. Men's Ass'n, 119 Iowa, 220, 93 N. W. 90, 97 Am. St. Rep. 298;Shuman v. Supreme Lodge, 110 Iowa, 480, 81 N. W. 717.

[2] Before ruling on the objection the letter was handed to the court for inspection for the purpose of determining its admissibility. After reading the letter the court sustained the objection. There is nothing in the evidence showing what the letter contained, and we are therefore unable to say that its exclusion was error.

We think the objection to the admission of the letter as being a privileged communication was correct.

[3] It was developed by the cross-examination that defendant sought to show by the contents of this letter that her husband was a defaulter in the bank in which he was employed, and that his absence was explained because of his flight from the scene of his crime. This fact was shown by a letter received by the president of the Spragueville bank and by the concession made by the plaintiff in the later progress of the trial. As this fact was fully established without dispute by other evidence, the exclusion of Exhibit A was not prejudicial. Hibbets v. Threlkeld, 137 Iowa, 164, 114 N. W. 1045;State v. Schumann, 187 Iowa, 1212, 175 N. W. 75;Peterson v. McManus, 187 Iowa, 522, 172 N. W. 460;Polk County v. Owen, 187 Iowa, 220, 174 N. W. 99.

[4] II. Complaint is made of the admission of Plaintiff's Exhibits 2, 3, 4, 5, and 6, being letters from the insured's mother in Denmark. These letters were written in Danish and were translated by an interpreter. They were all identified as being in the handwriting of the writers. They were clearly admissible as tending to show that inquiries were being made from the persons most likely to have heard from him. We find no error in their admission.

[5] III. Complaint is also made of the court's action in sustaining objections to question asked the plaintiff in reference to conversations she had with Mr. Stromeyer, the bank's president, as to the reason of his disappearance. There is no prejudicial error in this ruling, because it was later shown and conceded that the cause of his disappearance was his defalcations at the bank. For this reason we find no error.

[6] The rule, as already stated in division 1 hereof, is that there is no prejudicial error in excluding certain evidence when the same evidence was fully established without dispute by other evidence....