Van Norman v. Modern Bhd. of Am.

• Decision Date: 02 July 1909
• Citation: 143 Iowa 536,121 N.W. 1080
• Parties: VAN NORMAN v. MODERN BROTHERHOOD OF AMERICA.
• Court: Iowa Supreme Court

143 Iowa 536

121 N.W. 1080

VAN NORMAN

v.MODERN BROTHERHOOD OF AMERICA.

Supreme Court of Iowa.

July 2, 1909.

Appeal from District Court, Linn County; Milo P. Smith, Judge.

Action at law upon a certificate of life insurance. Verdict and judgment for plaintiff, and defendant appeals. Affirmed.

See, also, 134 Iowa, 575, 111 N. W. 992.

Grimm & Trewin, for appellant.

Voris & Haas, for appellee.

WEAVER, J.

The defendant is a corporation engaged in the business of life insurance upon what is known as the fraternal or assessment plan. On or about November 22, 1897, David W. Van Norman became a member of the organization and received therefrom a certificate entitling his wife, Annie Van Norman, to the sum of $2,000 upon his death, subject to certain expressed conditions. Said Van Norman maintained his membership in good standing, paying all dues, assessments, and charges against him until about January 1, 1905, when he died from the effects of a gunshot wound. On proper proofs of his death being made, the defendant refused to pay the promised indemnity on the ground that deceased came to his death by suicide, and the terms of the contract of insurance did not cover such a loss. This action was thereafter begun at law upon the benefit certificate. On motion of the defendant the cause was transferred to the equity calendar for trial and a decree dismissing the action. On appeal to this court that decree was reversed and the cause remanded for trial as a law action. Van Norman v. Brotherhood, 134 Iowa, 575, 111 N. W. 992. On retrial in the district court, there was a verdict and judgment for plaintiff, from which the present appeal is taken.

The provisions of the contract relied upon by the defendant are as follows: The application of the deceased upon which he was admitted to membership contained the following clause: “I further agree that in the event of my death by suicide, whether sane or insane, any certificate that may be issued upon this application by said fraternity shall become void.” In the certificate upon which suit is brought there is also the following: “Third. If a member holding this certificate * * * shall die in consequence of duel or by his own hands, whether sane or insane, * * * then this certificate shall be null and void, and of no effect, and all moneys which shall have been paid, and all rights and benefits which may have accrued on account of this certificate shall be absolutely forfeited. * * *”

1. The validity of this condition of the defendant's liability is not denied and the principal controversy is therefore reduced to the simple proposition of fact: Did the deceased commit suicide? It is the position of the appellant that the evidence upon this point is so overwhelming and without conflict that the court should have directed a verdict in its favor. David Van Norman was by trade an upholsterer, and had also spent some years in railroad service, but during the latter part of his life had been acting as a solicitor of life insurance in the employment of the Fraternal Bankers' Association. His average ordinary weight was about 160 to 165 pounds, and at the time of his death he weighed 155 pounds. For several years prior to his death he suffered to some extent from stomach trouble, the nature of which is not well defined, and for the last few months had been treated with more or less frequency by a physician. The extent of this ailment, its effects upon him, and whether he was otherwise suffering from any abnormal condition of body or mind is the subject of considerable conflict in the testimony. As to the situation of his home and the circumstances surrounding his death, we adopt, in part, the statement of facts in appellee's brief, as they seem to have support in the record. It is perhaps more extended than is really necessary, but, the question at issue being one of fact, it is well to have the situation pictured with considerable minuteness of detail.

At the time of the death of David Van Norman, he and his wife were living in the home of his parents on C avenue in Cedar Rapids. The sister of David was the wife of John Gadbois, whose home was next door west of the Van Norman home. David and his wife and a 12 year old son had been living with his parents in their home for three or four years. C avenue runs east and west, and these two homes are on the south side of the avenue. The two homes were on the same lot, and only 10 or 15 feet apart; Van Norman's being on the east. The front door in each opens directly into the parlor, the parlor extends across the front of the house, except a bedroom on the east, the parlor being the northwest corner of the house, and the bedroom directly east of it. Immediately back of the parlor is a sitting room, and east of that is a small bedroom, which, in the Gadbois home, was also sometimes used for and designated as a bathroom. Back of the sitting room is the kitchen, which extends along the back of the house. In going back and forth between the two houses the family used the back way. There were porches on the west of the kitchens. David Van Norman during the time he and his family lived in the Van Norman home occupied the small bedroom on the east of the sitting room corresponding with the so-called bathroom in the Gadbois home. There was an ordinary door between the sitting room and bathroom, but it was never closed. There was no closet in the bathroom--just a tub. A stairway begins at the northeast corner of the bathroom. There was a chiffonier standing between the stair door in the bathroom and the door between the bathroom and the sitting room on the north side, right back against the wall. This chiffonier just took the space between the two doors. There was another door opening from that bedroom into the front bedroom. There was a single bed in that room in the southeast corner against the two walls. The bath tub was right back of the door against the west and south wall. There is a window opposite the door that faced the Van Norman house, and in front of this window a sewing machine stood. This bedroom is about eight feet east and west, and ten feet north and south. There was one commode in the room between the single bed and the bath tub up against the south wall of the room. There was a closet under the stairway, on the west side. The only light in this bathroom was the one window opposite the door leading into the sitting room. This so-called bathroom was kept as sort of extra bedroom, and was used by the Gadbois family as a bathroom. In the commode on the south side of the room they had lots of stuff for kodak purposes--developing pictures, plates, and stuff like that. On the top of the chiffonier were kept fancy things. The firearms of the house consisted of two shotguns and a rifle, and were kept right in the northeast corner of the bathroom back of the stairway door that leads upstairs. There was nothing else in that corner. One shotgun belonged to Mr. Gadbois, and the rifle and smaller shotgun belonged to Mrs. Gadbois. The rifle was a single shot, breach-loading, 22-caliber rifle, and would shoot either a 22 short or a 22 long. Mrs. Gadbois had not personally used this rifle for three months. She always kept the barrel properly cleaned in good shape, and the entire gun in good working order and in good condition. The smaller shotgun belonging to Mrs. Gadbois was a 16-gauge breechloading shotgun, the other shotgun was larger, and had been used the last time by Mr. Gadbois. It was the practice and custom of the Gadbois and Van Normans to clean all guns and oil them up properly, and put them away in good condition after using them, and to leave them unloaded. David Van Norman had been in the habit of hunting a great deal for a great many years, and enjoyed the sport very much. He was somewhat of an enthusiast in reference to guns, and was perfectly familiar with their use and with the different makes. He had a rifle of his own, the exact pattern of 22-caliber owned by Mrs. Gadbois, and kept it at his father's home, and had had that rifle for seven or eight years. He had used it a great deal. David Van Norman and Mrs. Gadbois were in the habit of practicing together with these rifles at target practice. They used to go hunting together, and used these rifles at such times. Ammunition was kept in the Gadbois house for each of these shotguns and for the rifle, and was kept in this bathroom. The cartridges for the rifle were in a little pouch that was carried in a hunting belt, and was hung up on one of the hooks over the bath tub in this bedroom. There was a special pocket for the purpose of carrying ammunition. They had used it when hunting with David Van Norman. It was not the custom or habit of the Gadbois family or of David Van Norman or his wife to keep a gun loaded about the house. The shells were always removed. The only gun that David Van Norman had was the rifle, and it was a duplicate of the one owned by Mrs. Gadbois. He used the rifle altogether. During the three or four years that the families lived in adjoining houses on C avenue, the two guns, namely, the shotgun and the rifle, of Mrs. Gadbois, and also the shotgun of John Gadbois, were owned by the parties, and John Gadbois also owned a revolver. They all used these guns frequently, and David especially enjoyed the sport with the gun. The cartridges for the shotguns hung right over the bath tub on the west wall, usually in John Gadbois' hunting vest, in the place for shells upon the vest. These shells were kept in there, and hung there right along, and had for a good many years.

On the night of December 26, 1904, five days before the death of Van Norman, this 22-caliber rifle belonging to Mrs. Gadbois, and which was set in the northeast corner of the bedroom in which the bath tub was, and which Van Norman had frequently handled and knew was always kept clean and unloaded, was loaded with a 22 short, smokeless powder cartridge by John Gadbois for the purpose...