Woodmen of the World v. Alexander

• Decision Date: 09 February 1922
• Docket Number: (No. 2505.)
• Parties: WOODMEN OF THE WORLD v. ALEXANDER.
• Court: Texas Court of Appeals

239 S.W. 343

WOODMEN OF THE WORLD v. ALEXANDER.

(No. 2505.)

Court of Civil Appeals of Texas. Texarkana.

February 9, 1922.

Appeal from District Court, Camp County; C. E. Bryson, Special Judge.

Suit by Cora Alexander against the Woodmen of the World. Judgment for plaintiff, and defendant appeals. Reversed and remanded for new trial.

The suit was by appellee, the beneficiary named in a certificate or policy issued by appellant (a fraternal benefit society) to her husband, M. D. Alexander, September 20, 1919. By the terms of the contract evidenced by the certificate appellant was to pay appellee $500 if the insured died during the first year of his membership, $750 if he died during the second year, and $1,000 if he died after the second year; and in addition thereto, without respect to the time when the insured died, was to pay $100 for the erection of a monument to his memory. The insured died May 19, 1921, which was during the second year of his membership. It was stipulated in the certificate that it should "be null and void and of no effect" if the insured should die "by his own hand or act, whether sane or insane"; and in his application for the insurance the insured agreed that in the event of his death by his own hand or act, whether he at the time was sane or insane, the certificate he applied for should be "null and void and of no effect." In its answer to the suit appellant alleged that the insured died from his own hand or act, and set up the provisions in the application and certificate referred to as a defense against the recovery sought by appellee against it. At the trial appellant invoked rule 31 for district courts (142 S. W. xx); and, after admitting that appellee had "a good cause of action, [quoting] as set forth in her petition, to the extent of $750 and a monument, except so far as it may be defeated in whole or in part by the facts of its answer constituting a good defense, which may be established on the trial," asked and was granted permission to open and close the argument in the case. Appellee, it seems, relied on the admission by appellant referred to, and did not offer any evidence in support of the allegations in her petition. Testimony admitted at appellant's instance to establish its contention that the assured was a suicide was substantially as follows:

Walter Carpenter testified that on the morning of May 19, 1921, he heard appellee scream, and ran down to her home. When he got there appellee told him that her husband was "at the barn dead." The witness went to the barn, and saw the insured there hanging by a rope about 12 feet long, which was wrapped, but not tied, around a joist about 7 feet from the floor. The insured's head "was about 3 feet below the joist," and his arms "were hanging down by his side." "His feet," the witness said, "were not clear of the floor. His toes were turned back behind him, and his knees were almost to the floor. He could have straightened up and prevented death, and would have had to force himself down to make the rope choke him." There was a knot in the rope "somewhere about the joist." "That knot," the witness said, "would have been the only thing to keep the rope from slipping off the joist. I really believe that knot was in a position to keep the rope from slipping, or it was right close to it." The witness cut the rope near the assured's neck, and left the rope, without otherwise disturbing it, hanging to the joist.

Ray Johnson testified that he saw the insured within a few minutes after "they cut him down," and examined the rope "where it was around the joist." "It was just looped around the 2 by 4 joists," he said. "There was a knot in the rope, but it was not where it was wrapped around the joist. The rope was wrapped around the joist one time. I can't say about it just being laid up there. It is a mystery to everybody how that rope held him the way it was attached to the joist."

M. M. Smith testified that he held an inquest, and went to the barn, where he saw the rope. "It was wrapped around that joist two or three, at least, times, at least three times around that joist," he said. "There was a knot in the rope in the part that was wrapped around the joist, and the part of the rope his head was attached to came across the rest of the rope below the knot that was in the rope."

Dr. Henderson, the county physician, testified that he attended the inquest, and saw the rope. "I think," he said, "the rope was probably wrapped around the joist two or three times." The witness said he did not examine the assured's body, but that "there was some visible signs of marks around his neck." His conclusion from what the witnesses said and what he saw was that the assured died from strangulation, "as his neck was not broken. He just choked to death." On cross-examination the witness said:

"I don't think that a man in a position that he could raise himself up and keep from choking to death, I don't think that he could force himself down and choke himself to death. I think there would be an involuntary effort in a man to protect himself, even if he wanted to choke to death, if he was in the position described by you."

And on re-examination by appellant said:

"I don't think that a man would be able to just drop himself down and choke to death without any effort to protect himself. If he had been up on a box or something above the floor and jumped off, it might have caused him such a shock that he would not have made any effort to protect himself. If he had fallen any distance it might have shocked him to such an extent that he could not have made any effort to protect himself."

It appeared from the testimony of several witnesses that there were two boxes in the barn—a large one 5 or 6 feet from the place where the assured was found, and a small one, about 12 inches high, about 2 feet from said place. The assured's hat was found on the larger box.

The witness Carpenter said the assured a short time before he died talked to him, with tears in his eyes, "about being in hard circumstances, and his crops not doing any good," and "like he owed some money and could not pay it." That kind of talk, however, the witness added, was not unusual. "Everybody," he said, "claimed to owe debts they could not pay. That was the conversation of everybody and every crowd of farmers that got together." The witness Johnson testified that the assured also talked to him about crop conditions. "He said he was troubled about his crop conditions."...