Appeal from circuit court, Tippecanoe county; B. W. Langdon, Judge.
DAVIS, J.
This was an action by the appellee, Matilda Nitterhouse, against the appellant on a policy of insurance for $2,000, 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 insaneat 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 but 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 At the conclusion of the evidence, by agreement of the parties made in open court, the cause was withdrawn from the consideration of the jury, and submitted to the court for trial and final determination in the circuit court upon the evidence then in the record.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 7th or 8th 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 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 house, and was not able to attend to his duties as foreman of the shops of the Louisville, New Albany & 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 the morning ate a hearty breakfast; that said decedent was the owner of a 38-caliber 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 employés 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 daughters 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 left 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 his 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 caliber. The court further finds that there were no powder burns or marks on the face or foreheadof 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 was neither depression nor lividity of the skin; that at the time the pistol was discharged it was not in 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 mark 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 curve, 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...
