Wood v. Sovereign Camp of Woodmen of World

• Decision Date: 20 June 1914
• Docket Number: 28992
• Citation: 147 N.W. 888,166 Iowa 391
• Parties: HARRIET WOOD, Appellee, v. SOVEREIGN CAMP OF THE WOODMEN OF THE WORLD, Appellant
• Court: Iowa Supreme Court

147 N.W. 888

166 Iowa 391

HARRIET WOOD, Appellee, v. SOVEREIGN CAMP OF THE WOODMEN OF THE WORLD, Appellant

No. 28992

Supreme Court of Iowa, Des Moines

June 20, 1914

Appeal from Cedar Rapids Superior Court.--HON. C. B. ROBBINS, Judge.

ACTION at law on a certificate of membership in the defendant company. Trial to a jury. Verdict and judgment for plaintiff. Defendant appeals.

Affirmed.

Grimm & Trewin, for appellant.

Barnes & Chamberlain, for appellee.

PRESTON J. LADD, C. J., and EVANS and WEAVER, JJ., concurring.

OPINION

PRESTON, J.

The petition set out the certificate which was issued to the deceased, Samuel Wood, the fact that deceased came to his death about August 12, 1911, and that the defendant had waived proofs.

The answer admitted all the allegations of the petition, and that plaintiff would be entitled to recover but for the fact that deceased committed suicide, contrary to the terms of the application, certificate, and constitution and by-laws of the order, which provided, in substance, that in the event of death of the deceased by his own hand or act, whether sane or insane, the certificate should be void.

The only issue in the case, and the only one submitted to the jury, was as to whether or not the said deceased came to his death by his own hand or act. The errors assigned relate to the sufficiency of the evidence to sustain the verdict, the refusal of the court to give instructions requested by the defendant, and to the giving of others by the court on its own motion. The point most strongly urged is the one first above mentioned.

Because of the presumption that from love of life men will not inflict death upon themselves, the trial court held that defendant had the opening and closing. Defendant assumed the burden and proceeded to introduce its testimony. There was no eyewitness to the act of shooting. It is the contention of the defendant that the circumstances show that the defendant committed suicide, and that the evidence is so clear and strong that there can be no other reasonable hypothesis or theory as to the cause of death, and that this court should so say.

The plaintiff claims that the facts shown are consistent with the theory of accidental shooting, and that the defendant had not overcome the presumption, or at least that it was a question for the jury to say whether the presumption and the circumstances tending to indicate an accidental shooting had been overcome.

As to many of the facts there is no substantial dispute. In the application for membership deceased stated, in answer to an inquiry as to his family history, that his father committed suicide; that the father bought stolen property unknowingly and was about to be placed under arrest and killed himself.

Deceased was at the time of his death superintendent of city parks of Cedar Rapids and had been such for more than a year. Deceased had had a revolver ever since he was superintendent and carried it a considerable part of the time. He carried it in the daytime on account of the dogs worrying the deer, and at night because he was a police officer. A few days before his death he went to Kansas City to a park convention, and returned on Friday morning, the day before his death, and on the morning of his return read an article in the paper in regard to supposed misconduct of a park employee, who was not named. A complaint had been lodged with the city council in regard to the conduct of the deceased by some woman who claimed that he had ill treated her by separating her from her escort and putting them out of the park; that he had scolded her; that she cried; and that deceased had made an improper proposal to her. After reading the article in the paper, deceased called up the mayor on the telephone, and deceased was informed that there was such a complaint, and that an investigation would be had when one of the park commissioners returned. On Friday deceased talked with different ones about the matter and seems to have been somewhat concerned in regard to it. One witness testifies that deceased said to him, in speaking about the newspaper article:

'If it's me, it must have been that time a few days ago when I chased that couple out of the park what has done nuisance in front of the park,' and said he wouldn't care so much just for himself if it had not been for his wife and boy, and that he thought these people he had driven out of the park had laid a snare for him.

Deceased said that he would fight the matter to a finish, and a witness says he expressed no fear of the charge or of an investigation. When deceased went to Kansas City, he gave the revolver to his son, a young man about twenty years of age, and told him to take care of it and clean it up; during his father's absence the son kept the revolver in his bedroom under the bed. The revolver was loaded, and the son did not clean it. Deceased went to bed about 9:30 o'clock Friday night, saying that he had lost sleep the night before while traveling. His widow gives an account of his conduct during the night substantially as follows: That she went to bed between 9 and 10 o'clock, and her husband was then asleep. That he got up about 12 o'clock the first time and was looking through the window. He stated that he thought he heard some one around. She told him there was no one, and he went back to bed. About a quarter to five he got up again and said he heard some one. She told him there was no one around, it must be the horses in the barn, and he said all right. She thought he went back to bed again, and she says he went to sleep so far as she knows; she got up about 6:30.

The son testifies: That he went to bed about 9:30 or 10 o'clock and slept until five in the morning, when his father came into his room, but did not say anything about the revolver, and, so far as the son knew, it remained under his bed; he did not know when his father got it. That his father stayed in the room three or four minutes and seemed satisfied and went back to bed. He says, further, that when his father came into his bedroom he said he thought there was some one around the house; the son told him there was nobody around, that it was his window curtain flying loose and flapping against the window; that he got up about 7 o'clock and went downstairs, where his mother was preparing breakfast; that his father was not up yet; that he made no examination to see whether or not the revolver was still under his bed. The son says the hammer of the revolver acted very easily. He also testifies that after he got up in the morning he did not hear his father go to his (the son's) room, and that he would have heard him if he had done so. The revolver was a .32 caliber, three-inch barrel, double action, self-cooking revolver, of the Iver-Johnson make.

After Mrs. Wood got up and went downstairs to prepare breakfast, she made some coffee and took it upstairs to deceased; deceased complained of feeling tired, and that he had lost sleep on the train, she advised him to lie in bed a little longer He drank half the coffee, and that was the last she saw of him alive; she did not go upstairs again until after she had heard the shot.

The son testifies, in substance, that he had started to eat his breakfast when he heard the shot and went upstairs and found deceased on the bed, not in the center, a little more to the side, with his head partly through the rods of the bedstead; he did not notice where the hands of deceased were; he remained there an instant, long enough to see that his father was shot; that the right temple of deceased was towards the outside edge of the bed; that the mother was at the foot of the stairs and came up at once, and the son called Mr. Mashek, who came in about five minutes; that Mr. Mashek drew the body of deceased down on the bed, so his head would not hang back between the rods of the bed, and put a pillow under his head. The son says that when he first went up the blood was running out of the wound and over the face and beard of deceased.

Mr. Mashek says that when he came in he inquired of Mrs. Wood as to what was the matter, and she said that her husband had killed himself; that when he went upstairs deceased had on a union suit, and his head was between the bars at the head of the bed hanging down as far as the shoulders would permit; blood was running from the wound on the right side and coming out of his mouth and nostrils; that when he got there the deceased moved his chest, but was not conscious; that he pulled the body of deceased down so it would lie straight, and so his head would rest on the bed, and that soon after they found a revolver under Mr. Wood, a little back of the crotch; that was after they had pulled the body down on the bed.

There were four loaded cartridges and an empty shell in the revolver. The hammer was down on the shell. The wound was in the right temple, well towards the front. One witness describes it as about an inch or three-quarters of an inch back from the eye.

There is some difference of opinion as to the appearance of the eyes. Some claim that they were bulged considerably, others not so much. From the appearance of the wound, it seemed to go straight in, as some of the witnesses put it. There is a sharp conflict in the testimony as to whether there was a discoloration or powder marks around the wound in the temple. The coroner testified that:

Around the edge--right around the outside edges of the wound, it appeared to be burned a little. I couldn't say the flesh was scorched; but it was discolored a little. Q. State whether or not it had the appearance around, close in the wound, of being blackened. A. It had; yes, sir. Q. As though by powder marks? A. Slightly; yes, sir.

Other witnesses testified that they observed the skin...