Zearfoss v. Switchmen's Union of North America
| Decision Date | 19 July 1907 |
| Docket Number | 15,200 - (181) |
| Citation | 112 N.W. 1044,102 Minn. 56 |
| Parties | BERTHA ZEARFOSS v. SWITCHMEN'S UNION OF NORTH AMERICA |
| Court | Minnesota Supreme Court |
Action in the district court for Carlton county to recover upon a life insurance policy. The case was tried before Dibell, J and a jury which rendered a verdict for $1,241 in favor of plaintiff. From an order denying a motion for judgment notwithstanding the verdict or for a new trial, defendant appealed. Reversed.
Life Insurance -- Suicide.
One who intentionally takes his own life by administering to himself a poisonous drug, being of sufficient mental capacity to comprehend the nature and consequences of the act, commits deliberate suicide.
Evidence.
The evidence does not purport the finding of the jury that the deceased met his death from some cause other than deliberate suicide.
Leo A Ball and Ross & Dwyer, for appellant.
Reynolds & McClearn and W. P. Crawford, for respondent.
Samuel Zearfoss, respondent's husband, during his lifetime held a policy of $1,200 in appellant corporation which contained the following stipulation: "No claim shall be paid where death or disability is in consequence of the following causes: * * * Deliberate suicide." Respondent having recovered a verdict for the full amount of the policy, appeal was taken from the order denying appellant's motion for judgment notwithstanding the verdict or for a new trial.
Zearfoss was a man forty six years old, residing at Superior, Wisconsin, with his family, which consisted of himself and wife, a son, and married daughter. About seven o'clock in the evening of Tuesday, January 23, 1906, he was found dead in a bedroom of a lodging house kept by a Mr. and Mrs. William Fischer. The evidence will have to be examined with care to determine whether it was sufficient to justify the jury in concluding that the insured did not commit deliberate suicide. Although Zearfoss was in the habit of taking intoxicating liquors, he did not drink to excess, except about once a month, when he would go off on a spree. So far as the record disclosed, there was no family trouble which would tend to influence him to take his life. He had been in the employ of the Lake Superior Terminal & Transfer Railway Company as a switchman during December, 1905, and on January 16, 1906, was paid for December's work the sum of $58.18, at which time he stopped working, and four days thereafter, on January 20, went to the switching foreman and asked for his time, and was given an order on one of the officers of the transfer company, and received $40.60 for the time he had worked in January. He left his home about two o'clock in the afternoon of January 19, and never returned. On the 22d, about eight o'clock in the evening, he telephoned his wife that he would be home at ten o'clock the following morning but refused to tell where he was. The Fischer lodging house was located at the corner of Seventh street and Tower avenue in Superior, a two-story frame building, the lower floor of which was occupied as a saloon by one Ed Larson, and the upper floor was the rooming house, and was about a five-minute walk from the Zearfoss residence.
Fischer testified that some time after twelve o'clock Monday morning, January 22, Zearfoss came to his place and asked for a room; that he was shown one, and paid the fifty cents charge in advance; that he then asked Fischer to go downstairs and have a drink, and after some talk they went downstairs, where they remained drinking and playing cards with the saloon keeper, Larson, and the negro porter, until about two o'clock in the morning, when Fischer left them and went to his room, but Zearfoss remained until about five o'clock in the morning, when he went to his room; that while talking over their drinks that night Fischer asked Zearfoss why he was not at home, and he answered, "Little trouble in the family," and, as Fischer was about to go upstairs, Zearfoss ordered a bottle of beer, and Fischer asked what he was going to do with it, to which Zearfoss replied, "Never mind, Fischer; it might be the last." Fischer did not see him again until he found him dead in bed. Mrs. Fischer testified that somewhere about five o'clock Monday morning Zearfoss came to her room, and stayed there until about three o'clock in the afternoon; that on Tuesday morning, between four and five o'clock, he came to her room again, and asked if he could be accommodated with a bed; that she assigned him to room No. 6, for which he paid her fifty cents; that to her knowledge he did not leave the room during the day, and she did not see him again until after his death. It does not appear that any one saw him on Tuesday except one Frank Miller, who had occupied the room given to Zearfoss, and whose personal belongings were still in the room. According to his testimony about three o'clock in the afternoon of that day he asked Mrs. Fischer if he might go to the room and get some things out of his trunk; that he found the door locked; that he knocked, and Zearfoss opened it; that Zearfoss asked him to get a drink of beer for him, and after searching his pockets for money found two nickels, which he handed Miller, who took the money, borrowed a pitcher from Mrs. Fischer, went downstairs, threw the two nickels on the counter, and the bartender filled the pitcher, and handed him back a nickel, which Miller returned to Zearfoss, and gave him the pitcher of beer; that, while he (Miller) was getting his clothes, Zearfoss took the pitcher, sat down on the bed, and began to drink out of the pitcher, and appeared to empty it; that as Miller was about to leave the room, about four o'clock, Zearfoss said, "Don't say anything to anybody that I am here;" also: Miller testified that he saw no glass in the room.
Fischer went to Zearfoss' room about seven o'clock Tuesday evening for the purpose of waking him, and found the door open and Zearfoss lying dead in the bed, dressed in his underclothes, and partially covered with the bed clothes. Fischer immediately notified police headquarters, and Detective Dill arrived and was the first person, besides Fischer, to enter and examine the room, and he testified that he found the body lying naturally -- one arm straight by his side, and the other partially on his body; that his clothing, except what he had on, was at the foot of the bed, with the exception of his coat, which hung on a hook behind the door; that he made a search of the clothing, and found only a watch and a nickel; that on the washstand he found a bottle of carbolic acid, a small beer glass, and a pitcher with a little beer in it, to which he touched his tongue and found it tasted and smelled like carbolic acid; that he could not definitely recall whether the pitcher was of earthenware or glass, but thought it held about a quart; that he could not remember whether the carbolic acid bottle had a stopper in it or not, but knew the liquid was white; that after removing the body he made a further search of the room, but did not find anything more, but testified that Fischer showed him an ordinary whiskey glass, which he told him he found between the pillow and quilt in the bed. The coroner testified that, upon being notified of the death of Zearfoss, he visited the room Tuesday evening; that he saw the pitcher and a beer glass, or cup, and a bottle of carbolic acid partly full; that he took possession of the bottle, and retained it until the time of the trial; that there was a strong odor of carbolic acid in the room, and that the pitcher and beer glass had a very strong smell of the acid; that he was under the impression that there was no bedclothing in the room when he was there. Rydell, the proprietor of the Red Cross Drug Store, across the street from the lodging house, testified and identified the carbolic acid bottle by the label which had the name of the store; said that he sold such a bottle of carbolic acid on Monday to a man who said his name was Murphy, and, being questioned as to the identity of the man who bought the acid and the deceased, said, when he had observed the body at the undertaker's:
Well, my judgment then was that there was not much doubt in my mind but what it was the same man. Q. State whether or not there is any doubt in your mind at the present time but what it was the same man. A. No, there is no reasonable doubt. There might be some; but, as I said before, I can't swear absolutely. Well, my best judgment is I think it was the same man.
A newspaper reporter, Collins, stated he was in the Larson saloon between one and two o'clock Tuesday morning and saw Zearfoss pull a roll of bills from his pocket. Collins also testified that he visited the room with Coroner Dudley and Detective Dill, and that he noticed a pitcher and basin in the room, and a small pitcher and water glass on the washstand, and that there was a little beer in...
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