United States Life Ins. Co. v. Kielgast

• Decision Date: 31 October 1889
• Citation: 129 Ill. 557,22 N.E. 467
• Parties: UNITED STATES LIFE INS. CO. v. KIELGAST.
• Court: Illinois Supreme Court

129 Ill. 557

22 N.E. 467

UNITED STATES LIFE INS. CO.

v.KIELGAST.

Supreme Court of Illinois.

Oct. 31, 1889.

Appeal from appellate court, first district.

Isham, Lincoln & Beale, for appellant.

George F. Westover, for appellee.

CRAIG, C. J.

This was an action brought by Elizabeth Kielgast, administratrix of the estate of Otto Wilhelm Kielgast, against the United States Life Insurance Company, in the city of New York, to recover the amount of a policy issued by the company to the deceased on the 22d day of July, 1884. To the declaration the defendant pleaded the general issue, and also filed one special plea, in which it set up that the policy of insurance contained a provision that if, within three years from the date of the policy, the insured should die by any act of self-destruction whatever, the policy should become null and void; and that the insured, Otto Wilhelm Kielgast, did die by an act of self-destruction, to-wit, by shooting himself with a pistol, by means whereof the policy of insurance became void. It appears that a coroner's inquest was held over the body of the deceased by the coroner of Cook county and a jury, and in making proofs of death a certified copy of the record of the coroner's inquest, consisting of the inquisition and the deposition of three witnesses, was returned to the insurance company as a part of the proofs of death. The inquisition shows on its face that Kielgast came to his death on the 17th day of January, 1885; that the death was caused by a pistol shot fired by the hand of the deceased while laboring under a fit of temporary insanity. On the trial the defendant offered in evidence the certified copy of the inquisition which had been returned to defendant as a part of proofs of death. The court excluded the evidence. The defendant then offered in evidence the original papers of which those previously offered were copies, offering the entire set of papers together, including the verdict and testimony. This evidence was also excluded.The defendant excepted to the decision of the court in excluding the evidence so offered; and the determination of the ruling of the court on the evidence is the principal question presented by the record. The inquisition was as follows:

‘State of Illinois, county of Cook-ss.: An inquisition was taken for the people of the state of Illinois, at 38 Grant place, in the city of Chicago, in said county of Cook, on the 18th day of January, A. D. 1885, before me, Henry L. Hertz, coroner in and for said county, upon view of the body of Otto W. Kielgast, then and there lying dead, upon the oaths of six good and lawful men of the said county, who being duly sworn to inquire on the part of the people of the state of Illinois into all the circumstances attending the death of the said Otto W. Kielgast, and by whom the same was produced, and in what manner and when and where the said Otto W. Kielgast came to his death, do say, upon their oaths as aforesaid, that the said Otto W. Kielgast, now lying dead at 38 Grant place, in said city of Chicago, county of Cook, state of Illinois, came to his death on the 17th day of January, A. D. 1885; and we, the jury, find that O. W. Kielgast came to his death on the night of January 17, 1885, by a pistol shot fired by his own hand while laboring under a fit of temporary insanity. In testimony whereof the said coroner and the jury of this inquest have hereunto set their hands the day and year aforesaid. DOUGLAS BARSTOW, Foreman. LOUIS GASSELIN. O. W. HAYNIE. H. M. GILLETTE. ANGELO FAIEL. M. J. SHUTE. HENRY L. HERTZ, Coroner. P. KNOFF, Deputy.’

Among the depositions was one given by appellee, as follows:

‘The deceased is my husband. He was thirty-nine years of age, and was born in Germany. Insurance agent by occupation.On the evening of January 17th, about 9 o'clock P. M., I heard a shot fired in his room. We hollered, and went down stairs, and sent my hired girl for the police. When he came, we went up stairs, where we found the deceased dead. All of a week ago he said he would kill himself. That was every day for the last six days. On the evening of January 17th, when he arrived home, he kissed his little boy, and said, ‘Charlie, this is the last kiss that you will give your father.’ For the last week he was drinking more than usual.

‘Elizabeth her X mark KIELGAST.’

We shall not stop to inquire whether the court erred in excluding the offered evidence as a part of the proofs of death, but we will proceed at once to determine the question whether the inquisition was competent evidence for the defendant under its special plea tending to prove that Kielgast came to his death by his own hand. The office of coroner, at the common law, is an ancient one; so much so that Jarvis on Coroners (page 2) says ‘that the office of coroner is of so great antiquity that its commencement is not known.’ In 2 Bac. Abr. 428, it is said: ‘The powers and duties of a coroner are, by the common law, both judicial and ministerial. His judicial authority relates to inquiries into the cases of sudden death, with the aid of a jury, super visum corporis, when the death has happened.’ And Blackstone says, (1 Comm. 348:) ‘The office and power of a coroner are also, like those of the sheriff, either judicial or ministerial, but principally judicial. This is in great measure ascertained by statute, (4 Edw. I.,) de officio coronatoris; and consists, first, in inquiring, when any person is slain, or dies suddenly, or in prison, concerning the manner of his death. And this must be ‘ super visum corporis;’ for, if the body be not found, the coroner cannot sit.' In Giles v. Brown, 1 Const. (S. C.) 230, it is said: ‘Coroners are very ancient officers at the common law. * * * In England they are chosen by the freeholders of the county; * * * and their powers, when appointed, are either judicial or ministerial. The judicial power of a coroner is, first, to inquire into or concerning the death of a man, when any one is slain or dies suddenly, by a jury of inquest super visum corporis, and this must be done at the place where the death happened; and if any one be found guilty, by this inquest, of murder or other homicide, he is to commit him to prison for further trial. They are also to make inquiry * * * of all things which occasioned it; after which it is his duty to certify the whole of this inquisition, under his seal and the seals of the jurors, together with the evidence thereon, to the court of king's bench or the next assizes.’

The earliest English statute relating to coroners was passed in the tenth year of Edward the First, and it is said by Jerv. Cor. 29, that it was merely directory, and in affirmance of the common law. The first act of the legislature of this statute regulating the duties of coroner was passed March 2, 1819. The next statute was passed January 20, 1821, (Laws 1821, p. 22.) This act, upon an examination, will be found to be substantially the legislature of this state regulating the statute does not differ materially from the earl er acts; indeed, coroners are now required to proceed substantially as at common law, and as required by the statute of 4 Edw. I. Under section 9 of our present statute relating to coroners, they are made conservators of the peace in their respective counties. Section 13 makes it the duty of the coroner, upon information that the dead body of any person is found or lying within the county, supposed to have come to his death by violence or any undue means, to repair to the place where the dead body is, and take charge of the same, and summon a jury of six lawful men of the neighborhood to assemble where the body is, and, upon a view of the body, to inquire into the cause and manner of the death. Section 17 makes it the duty of the jury, after being sworn, to inquire how, in what manner, and by whom or what the said dead body came to its death, and of all other facts of and concerning the same, together with all material circumstances in any wise related to or connected with the said death, and make up and sign a verdict, and deliver the same to the coroner. Sections 19 and 20 are as follows: ‘(19) If the evidence of any witness shall implicate any person as the unlawful slayer of the person over whom the said inquisition shall be held, the coroner shall recognize such witness, in such sum as he may think proper, to be and appear at the next term of the circuit court for the said county, there to give evidence of the matter in question, and not depart without leave, except that in the county of Cook the recognizance shall be to the criminal court of Cook county. (20) If any witness shall refuse to enter into such recognizance, it shall be the duty of the coroner to commit the witness so refusing to the common jail of the county, there to remain until the next term of the said court; and the coroner shall carefully seal up, and return to the clerk of the court, the verdict of the jury and the recognizances, and it shall be the duty of the clerk to carefully file and preserve the same.’ Section 21 requires the coroner to reduce to writing the testimony of each witness examined at the inquest, which testimony shall be filed by the coroner in his office and preserved. Section 22 provides that the coroner shall keep a record of each inquest. Section 26 provides that, if a person implicated by the inquest is not in custody, the coroner shall apprehend and commit such person to the jail of the county, there to remain until discharged by due course of law.

The foregoing are the principal sections of the statute which relate to the inquest of the coroner; and from the nature and character of the proceeding, as it has been recognized by courts and law-writers, we must determine whether a coroner's inquisition should be used as evidence in a case of this character. It will be observed that the evidence of all witnesses examined before the coroner is required to remain in his office, while the inquest...