Walden v. Bankers' Life Ass'n of Des Moines

• Decision Date: 13 June 1911
• Docket Number: No. 16,493.,16,493.
• Parties: WALDEN v. BANKERS' LIFE ASS'N OF DES MOINES, IOWA.
• Court: Nebraska Supreme Court

89 Neb. 546

131 N.W. 962

WALDEN

v.BANKERS' LIFE ASS'N OF DES MOINES, IOWA.

No. 16,493.

Supreme Court of Nebraska.

June 13, 1911.

Syllabus by the Court.

The burden is upon an insurance company to prove by a preponderance of the evidence a controverted defense that the deceased came to his death from poison self-administered.

In such a case the defense is not established unless the evidence so clearly and unmistakably points to the conclusion of suicide as to exclude all reasonable probability of death by accident or from natural causes.

The evidence adduced in this case is referred to and commented upon in the opinion and held sufficient to sustain a verdict for the plaintiff.

Where a written statement, alleged to have been found in the room where the corpse of an alleged suicide was discovered, is offered in evidence as part of the res gestæ of the transaction of his death, and it appears that several persons were in and about the room before the statement was noticed, and all of those persons were not called as witnesses, it is not an abuse of discretion for the district court to require proof that the statement or the signature thereto is in the deceased's handwriting, before admitting the statement in evidence.

In order that a party may avail himself of an error in rejecting the testimony of a witness on direct examination, he must make an offer to prove the facts he expected to show by such testimony.

The verdict of a coroner's jury that a person upon whose remains an inquest was held died as the result of poison self-administered is not competent evidence to prove that fact in an action to recover upon a policy of insurance upon the life of the deceased.

Appeal from District Court, Phelps County; Dungan, Judge,

Action by Dora F. Walden against the Bankers' Life Association of Des Moines, Iowa. From the judgment for plaintiff, defendant appeals. Affirmed.

Sedgwick and Letton, JJ., dissenting.

C. J. Beedle and I. M. Earle, for appellant.

H. M. Sinclair, Theodore F. Barnes, W. D. Oldham, and W. P. Hall, for appellee.

ROOT, J.

This is an action to recover upon a certificate of insurance upon the life of the late J. Ransom Walden. The plaintiff prevailed, and the defendant appeals.

The defense is that the deceased committed suicide by the use of cyanic poison, which, if established, should defeat the action. The cause was tried to a jury. No exceptions were taken to the instructions given, nor to the rejection of those requested.

[1] 1. The most important assignment of error is that the evidence does not sustain the verdict. The burden is upon the defendant to establish its defense, and the presumption is that Dr. Walden's death was involuntary. Travelers' Insurance Co. v. McConkey, 127 U. S. 661, 8 Sup. Ct. 1360, 32 L. Ed. 308;Hardinger v. Modern Brotherhood, 72 Neb. 869, 101 N. W. 983, 103 N. W. 74.

[2] The presumption may be rebutted and must yield to facts clearly inconsistent therewith, and, if competent proof of facts and circumstances surrounding the death so clearly and unmistakably point to the conclusion of suicide as to exclude all reasonable probability of natural death or accident the presumption will be destroyed and the defense sustained. Hardinger v. Modern Brotherhood, supra.

[3] The material evidence upon this issue, as we understand it, is as follows: The sheriff of Phelps county testified, in substance, that, during a conversation with Dr. Walden in his office between 10 o'clock and noon of the day the doctor died, he told him, at the request of the father of a young lady, that he ought to leave this woman alone, but the doctor replied that the affair had gone too far, and that he expected to marry the woman after procuring a divorce from his wife, and that a Mr. Falk, who accompanied the witness, told Dr. Walden that if he were in the doctor's place he would either leave the girl alone or leave the town. The interview continued five or six minutes, and the witness departed from the office at 11 o'clock or a few minutes thereafter. There is no evidence other than this testimony to prove that this woman is in life, that she resided in the state, that she was acquainted with the deceased, or that they had been in each other's company. On the other hand, the evidence is undisputed that the deceased and his wife were devoted to each other, that she frequently assisted him in his office, and that on the morning of the day of his death, when departing for his office, he had kissed her good-by. If the insinuation that Dr. Walden was infatuated with this young woman is justified by the facts, more proof could have been produced than appears in the record upon that point, and the jury might well question the existence of such a condition. Whatever may be the fact, the sheriff made no threat to Walden, and nothing is testified to that would have alarmed a timid man or discouraged an adventurous one if engaged in the unholy quest it is argued Dr. Walden was pursuing. Subsequent to the time the sheriff testifies to having talked with Dr. Walden, the dentist purchased a money order and remitted it to Detroit to pay for an office jacket which was shipped subsequent to his death. Evidently the dentist had not then determined to shuffle off this mortal coil.

About 12:30 Dr. Walden purchased a small quantity of cyanide of potassium. Walden had been in the habit of using the drug as an ingredient of a bath for dental plates and also used it in connection with plating silverware. He told the druggist that he wanted the drug “to put in his plating bath.” To this point there is nothing sinister in the proof. About 1 o'clock the occupant of an office in the building where the doctor's office was located noticed that persons coming to Walden's office did not gain admission. There is no direct proof that the office door was fastened, but the fact may be inferred from the evidence. The doctor's wife was notified, and some time after 2 o'clock his father and some other person, not identified by the witnesses, upon entering the office found the doctor's corpse upon a sofa. There is some conflict in the evidence; but we think it fairly appears that the doctor's shoes had been removed, and otherwise he was completely dressed. The evidence is uncontradicted that Walden's lower limbs were not flexed, his arms were not distorted, and his features were composed as though he were asleep. A distance of from 18 inches to 2 feet from the sofa a glass containing particles of a white substance was found upon the floor. There is some testimony tending to prove that this substance may have been cyanide of potassium; but no tests were made to ascertain the truth, and there is considerable evidence tending to discredit the conclusion. The evidence is also uncontradicted that the doctor used a like glass for a cyanide bath to cleanse his dental plates. There is some testimony to the effect that there were traces of a white substance near the corners of the deceased's mouth; but other witnesses, who were in the office as early as were the witnesses who testified to the fact, testify unequivocally that they closely...