The Travelers' Insurance Company v. Nitterhouse

• Decision Date: 23 November 1894
• Docket Number: 1,325
• Citation: 38 N.E. 1110,11 Ind.App. 155
• Parties: THE TRAVELERS' INSURANCE COMPANY v. NITTERHOUSE
• Court: Indiana Appellate Court

38 N.E. 1110

11 Ind.App. 155

THE TRAVELERS' INSURANCE COMPANY v. NITTERHOUSE

No. 1,325

Court of Appeals of Indiana

November 23, 1894

From the Tippecanoe Circuit Court.

Judgment affirmed.

W. D Wallace and S. P. Baird, for appellant.

A. L Kumler and T. F. Gaylord, for appellee.

OPINION

DAVIS, J.

This was an action by the appellee, Matilda Nitterhouse, against the appellant on a policy of insurance for two thousand dollars issued on the life of the appellee's late husband, George Washington Nitterhouse.

It is provided in the policy, a copy of which is filed with the complaint, that it is issued and accepted upon certain express agreements which are declared to be conditions precedent to the contract.

One of the provisions of the second condition is that if the assured, George Washington Nitterhouse, "shall * * * die by suicide, whether the act be voluntary or involuntary felonious or otherwise, or whether the insured be sane or insane at the time of the act, * * * then this policy shall be null, void and of no effect, except in the cases provided for by the sixth condition of this policy."

In the sixth condition of said policy it is provided that if the insured "shall die by suicide * * * during the continuance of this policy, then the full net value of this policy, per American Experience Table of Mortality and 4 1/2 per cent. interest and no more shall be paid."

The appellant filed an answer in four paragraphs.

The first paragraph of the answer was a general denial.

In the second, third and fourth paragraphs of answer, all of which purported to be put partial answers to the complaint, the appellant averred, in different forms, that the insured came to his death by suicide and prayed that appellee should be limited in her recovery to the net value, at the time of her husband's death, of said policy, per American Experience Table of Mortality and 4 1/2 per cent. interest, which the appellant averred (and which the court afterwards found) amounted to $ 306.36.

Appellee filed a reply and the issues thus formed were brought to trial before a jury, beginning March 8, 1893.

At the conclusion of the evidence, by agreement of the parties made in open court, the cause was withdrawn from the consideration of the jury and submitted to the court for trial and final determination in the circuit court upon the evidence then in the record.

On the 11th of March, 1893, the court, after having heard argument of counsel, took the cause under advisement, and, nearly a year thereafter, to wit, on the 2d of February, 1894, it made a special finding of facts, at the request of the appellant, and stated its conclusion of law thereon.

The finding in reference to the manner in which the insured came to his death is as follows:

"Third. The court further finds that at the time of his death said George W. Nitterhouse was 45 years of age, and, by his marriage with the plaintiff, had four children, who survived him, to wit, two daughters aged 17 and 15 years, and two sons aged 12 and 7 years; that on the 27th day of August, 1891, he was injured from a fall, in the left side near the seventh rib, and on the seventh or eighth day of December, 1891, he went, on the advice of his attending physician, who accompanied him, to Chicago, Illinois, where his seventh rib was removed by a surgeon, and the wound sewed up; that he remained in the hospital at Chicago for about three weeks, when he returned to his home at Monon, Indiana, at which time his wound was healed up and was doing well, and on the 13th day of January, 1892, he believed he was getting along splendidly; that afterwards, and before the 24th day of January, 1892, said wound broke out afresh, and on said 24th day of January, 1892, he was advised by his attending physician to return to Chicago for further treatment, and felt some discouragement then; that he consented, and promised to return to Chicago for such treatment, and afterwards, on the 28th day of January, 1892, he again asserted that he was going to Chicago to obtain treatment for his said injury; that during said month of January he was confined to his home, and was not able to attend to his duties as foreman of the shops of the Louisville, New Albany and Chicago Railway Company, at Monon, other than to keep the books required to be kept by him as such foreman; that he remained in the employment of said railway company, and kept said books at his home up to the day of his death; that on the night before his death he slept well, and in morning ate a hearty breakfast; that said decedent was the owner of a thirty-eight calibre revolver, which was self-cocking, and had five chambers, and when loaded the chambers could not be revolved without raising the hammer; that prior to his said departure to Chicago, said revolver was kept in his drawer at the shops of said railway company; that during his absence at Chicago one of the employes of said company caused said revolver, without the knowledge of the decedent, to be brought to the house of the plaintiff, and it was by her placed in the north upper drawer of a bureau in the bedroom occupied by her daughter in said house, and said drawer was locked; that a day or two before the 30th day of January, 1892, said decedent obtained the key to said drawer, where said revolver was, for the purpose, as he stated, of procuring some letters which belonged to him, and which were kept in said bureau drawer; that afterwards, on the morning of the 30th of January, 1892, at about 8 o'clock, said decedent went to said room where said revolver was kept as aforesaid, and shortly thereafter a pistol shot was heard in said room, and upon persons entering, said George W. Nitterhouse was found lying on his back on the floor, unconscious, and in a dying condition, and with a bullet hole near the center of his forehead; that when he was so found, he held said revolver in his right hand, the last three fingers thereof resting on the handle of said revolver, his index finger on its trigger, his thumb just back of the hammer of said revolver, and his right hand, which held said revolver, was resting on his body, bent in towards the stomach, and the muzzle of said revolver, two chambers of which were empty, was pointing towards his head.

The court further finds that said revolver was a self-cocker, and when loaded could be discharged by simply pulling the trigger, or by cocking the hammer and pulling the trigger; that when the hammer was down it rested between two cartridges, but on raising the hammer, the cylinder containing the cartridges revolved so as to bring in front of, and beneath, the hammer one of said cartridges. The revolver was known as an American Bull Dog of thirty-eight calibre.

The court further finds that there were no powder burns or marks on the face or forehead of the decedent; that some blood escaped from the wound in the forehead; that the skin of the forehead was not removed or denuded except in the space covered by said bullet hole, at and about which there were neither depression nor lividity of the skin; that at the time the pistol was discharged, it was not in the immediate contact with the face or forehead of the deceased; that it was so far distant from the forehead of the decedent that no powder marks could be made on the forehead or face of the deceased; that prior to the death of the decedent, he in no way or manner expressed any desire or purpose of committing suicide, and at and prior thereto he was and had been living on the most affectionate terms with all the members of his family.

The court further finds that said decedent came to his death by accidentally shooting himself with said revolver, near the middle of the forehead, the bullet therefrom making a slightly downward course and going nearly through his head; that just before said revolver was discharged, the decedent was holding it in his right hand with his index finger on the trigger."

The appellant thereafter filed a written motion and reasons for a new trial. The first cause assigned for a new trial is that the special finding of facts is not sustained by sufficient evidence. The court overruled the motion, appellant reserved the proper exception, judgment was rendered in favor of appellee for $ 2,199.30, and appellant, within the time allowed, filed a bill of exceptions containing the evidence.

The error relied on for a reversal is that the court below erred in overruling appellant's motion for a new trial.

The contention of counsel for appellant is that Nitterhouse died by suicide, and that the finding of the court that he died by accident is wholly unsupported by the evidence.

The appellant alleges in an affirmative answer that the insured came to his death by suicide. The issue thus made placed the burden upon the appellant to satisfy the trial court, by a fair preponderance of proof, of the truth of this defense. Home Benefit Assn. v. Sargent, 142 U.S. 691, 35 L.Ed. 1160, 12 S.Ct. 332; Phillips v. Louisiana Equitable Life Ins. Co., 21 Am. Rep. 549.

On the trial appellee read in evidence the certificate of the attending physician, who states therein that in his opinion the insured committed suicide. Appellant introduced in evidence the coroner's verdict, which finds that the insured committed suicide. Also, appellant read in evidence a letter written by appellee in which she says that the insured, while temporarily insane, shot himself.

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