Supreme Lodge Knights of Honor v. Fletcher

• Decision Date: 28 January 1901
• Citation: 78 Miss. 377,29 So. 523
• Court: Mississippi Supreme Court
• Parties: SUPREME LODGE KNIGHTS OF HONOR v. JOHN M. FLETCHER, GUARDIAN

29 So. 523

78 Miss. 377

SUPREME LODGE KNIGHTS OF HONOR v. JOHN M. FLETCHER, GUARDIAN

Supreme Court of Mississippi

January 28, 1901

ON THE MERITS.

The main issue of facts presented by the pleadings was whether or not the insured, one D. B. Noah, committed suicide. In the course of the trial, the defendant offered to read in evidence a certified copy of the proceedings and finding of the coroner's jury which held an inquest over the body of the decedent. Objection being made thereto by plaintiff, the court below sustained the objection and refused to allow the same read, and the defendant excepted. At the close of the evidence the defendant asked for a peremptory instruction which the court below refused.

Reversed and remanded.

C. H Campbell and W. A. Hayden, for appellant.

Did Noah commit suicide? tat is the question. What is the evidence on that issue? On the night of November 30, 1899 deceased occupied a room with one Perkins. When Perkins retired Noah seemed to be asleep. Perkins was the railroad agent at Fayette, Mississippi. On the morning of December 1st, about 7 o'clock, Perkins dressed and started to his place of business. Noah was awake; they had some conversation. In two hours he was found dead -- lying across the bed in his night clothes, with a gunshot wound entering just above and in rear of right ear, passing out just above and in rear of left ear, a pistol gripped in his right hand, powder indications on the left forefinger and the left thumb and also where the wound was on the right side of head, with one chamber of the pistol freshly discharged, as clearly shown by C. C. Coffey's evidence; deceased's gold watch lying on a chair, $ 1.40 in his pockets. Deceased had requested T. B. McGinty, an acquaintance, some weeks before, if anything should happen to him, if he should be killed, to ship or carry his remains to Kosciusko; had written a note to McGinty reminding him of his promise or the request he had made of him, when starting on a bird hunt a few days before his death. Going out to the hunting ground he told J. V. Arnold about the note he had written McGinty; talked about his life insurance, said he had eleven thousand dollars, one thousand of which was to defray his burial expenses; told Arnold if anything happened to him that day, if he should be killed or fall down and kill himself, to roll him in the buggy and haul him to town and turn him over to Tom, meaning McGinty; he knew what to do with him. When on the hunt Arnold came upon Noah with the muzzle of his gun against his breast, in a dangerous position. Arnold called his attention to it; he changed position. After that, when they had agreed to separate and to each go a different way, Arnold found him sitting on a log in or near some bushes with his handkerchief to his eyes crying. The evidence shows that the pistol found gripped in Noah's hand was a 38 Smith & Wesson; that the ball picked out of the wall of the room was a 38 ball; the pistol the same one which he borrowed a few days before from one J. F. Costley, with one chamber empty and four loaded when borrowed. From these facts and many more testified to by the witnesses, is the conclusion not irresistible that D. B. Noah committed suicide?

What evidence is opposed to this? None of a tangible, certain, positive character. Some uncertain evidence about a sunken place under the left eye by witnesses who saw deceased in the coffin at Kosciusko. No examination made. Trying to get up some conflict as to where the shot entered the head of deceased.

We submit, if deceased took his own life, it was immaterial where the ball entered, though the evidence is overwhelming that it went through the head, from right to left, just above and behind the ears.

Under the well-defined legal rules, will the court permit this verdict and judgment to stand on the evidence in this case? If so, how is suicide to be established, unless by eyewitnesses?

We submit that the peremptory instruction asked by defendant should have been given. Swan v. Insurance Co., 52 Miss. 704; Whitney v. Cook, 53 Miss. 551; Railroad Co. v. Doyle, 60 Miss. 977; Holmes v. Simon, 71 Miss. 246; Bernheim v. Dibrell, 66 Miss. 199; Railroad v. Cathey, 70 Miss. 332; Dobson v. State, 67 Miss. 330.

J. A. P. Campbell, on same side.

The single question was, Did Noah commit suicide? I have never known a verdict more clearly in the face of the overwhelming preponderance of the evidence than this, which was for the plaintiff for the full amount claimed, if ever a case is to be presented in which this court shall perform its duty to prevent the looting of a benevolent society by an unwarranted verdict, this is it. I affirm, and with absolute confidence, without a doubt or a misgiving from the testimony, that Noah committed suicide.

The facts undisputed are these: He was found lying upon a bed which he had occupied the night before, with his feet upon the floor, his head about the middle of the bed in a pool of blood issuing from two orifices, one on the right and the other on the left of his head, just above the ears, with a pistol grasped in his hand, one chamber of which had been recently discharged; he had been dead when discovered something like two hours; the room had been occupied the night before by a friend of his with him, who had gone out for an early breakfast, closing the room door after him. There is not a suggestion nor hint nor shadow of ground for suspicion that death came by any other means than from the pistol in the hands of Noah.

The only effort to impair the force of this convincing testimony as to the manner of Noah's death, consisted of evidence that a bullet was found in the wall of the room about forty-four inches from the floor, while Noah's head was but twenty-two inches from the floor, and that the range of the bullet was downward. The worthlessness of such testimony is manifest. What the position of Noah was when he fired the fatal shot is a matter of conjecture. He may have been standing by the bedside or sitting upon it and have fallen backwards as found. Nothing can be known as to this. There remains the indisputable fact that he was found in his blood, with the instrument of death in his hand, with his feet upon the floor, and with the orifices of entrance and exit of the fatal missile. It is impossible to know what his precise posture was. If standing or sitting on the bedside when the fatal shot was fired, or lying down with his head in a certain position, all difficulty about the course of the bullet vanishes. That the bullet that passed through Noah's head made the hole in the wall, is mere conjecture. It seems most probable, if we enter a field of conjecture, that he did not place himself in the position in which he was found in order to shoot himself, but most likely that he would stand or sit so as to fall back upon the bed. His feet being on the floor and his arms and hands as they were strongly suggest this.

Besides this effort to break the overwhelming evidence of the manner in which he met his death, many witnesses were introduced at Kosciusko who looked at the corpse in the coffin, and testified that they did not see any holes or signs of pistol bullet wounds in the head of deceased, and this doubtless furnished the pretext for a jury, in an atmosphere favorable to the plaintiff, to disregard testimony of a most satisfactory character and find the verdict on the assumption that the man did not come to his death by a pistol shot at all. Two reputable physicians of Fayette, the sheriff of the county, a coroner's jury and divers others saw the corpse, saw the holes in the head, saw the...