Wiger v. Mut. Life Ins. Co. of New York

• Decision Date: 12 May 1931
• Citation: 236 N.W. 534,205 Wis. 95
• Parties: WIGER v. MUTUAL LIFE INS. CO. OF NEW YORK.
• Court: Wisconsin Supreme Court

205 Wis. 95

236 N.W. 534

WIGER

v.MUTUAL LIFE INS. CO. OF NEW YORK.

Supreme Court of Wisconsin.

May 12, 1931.

Appeal from a judgment of the Circuit Court for Pierce County; R. S. Cowie, Circuit Judge.

Action by Inga Wiger against the Mutual Life Insurance Company of New York. From a judgment for plaintiff, defendant appeals.--[By Editorial Staff.]

Affirmed.

This action was brought on March 1, 1930, by the plaintiff, as beneficiary of a policy of life insurance under a double indemnity rider which provided for an amount equal to the face of the policy, “if the death of the insured shall result directly from bodily injury independently and exclusive of all other causes and such bodily injury be effected solely through external, violent and accidental means.”

The defenses to the action were: (1) That the death of the insured was caused by his suicidal act, and (2) that his death was not the result of bodily injury effected through accidental means.

The case was tried before the court and a jury, and the jury rendered a general verdict in favor of the plaintiff. Judgment upon the verdict was rendered on December 9, 1930. and from this judgment defendant appeals. The facts are sufficiently stated in the opinion.Knowles & Doolittle, of River Falls, and Miller, Mack & Fairchild and Bert Vandervelde, all of Milwaukee, for appellant.

White & White, of River Falls, for respondent.

WICKHEM, J.

The insured died from the effects of carbon monoxide gas generated by an automobile in the garage at the rear of his home. At the time of his death deceased was fifty-seven years of age. For twenty-seven years he had been cashier of the Farmers' & Merchants' State Bank of River Falls. He was also the general executive head of the bank. He was highly regarded in the community and had many friends, a fine home, was generally regarded as a man of substance, and took pride in his position in the community.

For some time prior to his death the affairs of the bank had not been in good shape. Following an examination of the bank on August 13, 1929, the commissioner of banking instructed the directors of the bank to meet him at Madison. This meeting was held on September 12, 1929, and was attended by five of the directors, including Mr. Wiger, the insured. The commissioner reviewed the condition of the bank and made several recommendations looking to remedial measures. One of the recommendations was that Mr. Wiger be removed as cashier. This recommendation was made in his presence, and the commissioner testified that “he was pretty much floored. He was crestfallen and very much upset.” Following this conference the affairs of the bank were reviewed by letter from the commissioner of banking, in which it was pointed out that the liquidity of the bank was only 13 per cent. as against 35 to 50 per cent. normal; that the percentage of real estate loans was too high; that the amount of paper unsecured by tangible collateral was very much in excess of the normal percentage; that the amount of loans secured by liens on live stock and machinery was greatly in excess of the proper percentage for such loans; that there has been a gradual increase in the percentage of slow paper and a large amount of admitted losses. The overdrafts were excessive in number. The cash reserve was very low. The letter closes with the recommendation that Mr. Wiger be deposed as executive officer, although the commissioner was satisfied to have him remain as president or director. This letter came to Wiger's desk and was read by him. Nine days later his body was found in the garage. Thereafter the commissioner took charge of the bank. It is claimed by appellant that other irregularities were disclosed after his death by the examination of the commissioner. On July 31, 1929, the cash book showed a cash shortage of $1,597.61. On the next day the shortage was only $139.79, the difference having been made up by Wiger giving his personal note to the bank on July 31st. The shortage was an accumulation over some period of time, but it is claimed by the appellant that shortages and overages tend to equalize each other, and that this was an abnormal amount of cash shortage. Two days before his death Wiger made two entries on the books of the bank. One charged loans and discounts $1,000. The other credited his own personal account with $1,000. It was thus made to appear that one Nels Peterson had borrowed $1,000 from the bank on September 25th, and that Wiger had deposited $1,000 in his own checking account on that day. Actually, neither of these things happened. Prior to this time Wiger had loaned Peterson a larger amount than the directors thought was wise, and Wiger had reduced the amount of the Peterson note by using his own funds. On the day in question he credited his account with the amount so applied and made the corresponding charge to loans and discounts. On the day before his death he made two other entries which are claimed to be false. One charged bills payable with $1,049.49, indicating that the bank had borrowed that amount. The other credited the bond account with the same amount, indicating a sale of bonds in that amount. Neither of these transactions actually occurred. These entries were subsequently made the subject of a claim by the commissioner of banking against Wiger's estate. Two years prior to his death Wiger had transferred to his wife three items of real estate, none of the deeds of which were recorded until after his death. The inventory and appraisal of Wiger's estate showed assets of $11,095.26, and claims of creditors amounting to more than $50,000 have been filed.

It appeared that deceased had additional property in Upper Michigan and also in Washington. Some of this consisted of timber lands on which mortgages were outstanding or title to which was in litigation. There is no evidence in this case as to its value.

The garage in which the insured's body was found is located on an alley back of the residence of the insured. It is twenty-one feet long and eighteen and one-half feet wide, and designed to hold two cars. It is of hollow tile construction with concrete floors and a ceiling of insulite. On the side towards the house there is one ordinary door which opens in. It does not close automatically. On the alley side are two sets of triple doors. On the morning of Wiger's death two cars were stored in the garage, a Buick on the south side and a Ford on the north side. Both cars were pointed towards the house, and there was a space between them of about three feet. Wiger lay in this space at a slight angle, with his head towards the front of the cars and his right shoulder slightly under the running board of the Ford. His feet were near the back wheels. There was no trace of a bruise or contusion on the body such as might be expected to result from a fall. The Buick did not belong to Wiger and was frequently out of use for two or three days at a time. When it was not in use it was kept on tire jacks which fitted under the hub caps and raised and lowered by a single up and down movement of the attached hand lever. When Wiger's body was found the jacks had been removed from the two rear wheels of the Buick. The motor of the Buick was still running. He had entered the garage about 8:30 in the morning and his body was found between 4 and 5 o'clock that afternoon. The day was warm and there was no need to operate the motor for the purpose of warming it up while the jacks were being removed.

There is evidence to the effect that Mr. Wiger knew of the dangers from monoxide gas, and had commented within two months of his death upon the fact that a man ought to know better than to start a car in a garage without opening the doors. From all this the appellant contends that the evidence points to a single conclusion that the deceased committed suicide; that it is plain that his financial affairs and the affairs of the bank were approaching a crisis; that he was to be deposed from the work which gave him a livelihood, humiliated before the community, caused to lose the friendships which he treasured so highly, and subjected to the possibility of further embarrassment upon the discovery of irregularities that had not then come to the knowledge of the commissioner. He knew the effects and properties of monoxide gas. There was no need to run the motor for the purpose of warming up the engine. The absence of bruises indicated that he had not been suddenly overcome and caused to fall upon the garage floor. There was in the nostrils of Mr. Wiger a coating of an oily substance which resembled soot, indicating that he had come in contact with the oily soot from the exhaust either by being in close proximity to the exhaust or by lying on the ground while the car was running. This conclusion is based on the fact that monoxide gas is lighter than air and tends to rise while the ordinary ingredients of the exhaust are heavier than air and tend to sink.

The respondent's contention is that the evidence tends clearly to show accidental death; that the insured was robust and healthy, happy and contented with his domestic relations; that he was in the bank the day before his death and at the close of the bank suggested to the assistant cashier that they go out and see one Murphy about a past-due note. It started to rain, and they called up Mrs. Murphy on the telephone and found out that he was not in. He said he would call some other time. The notes were left in the note pouch at the bank, and Mr. Wiger and the assistant left the bank at the same time that night. After Mr. Wiger's death the Murphy notes were found in his pocket. On the night of September 26th he informed Henry Zorn that he was going out in the country early in the morning, and, on the morning of the 27th, the deceased was seen on the streets of River Falls going to the bank. On the morning of the 27th he had his breakfast, read the newspaper, and went out to the garage, and was never...