'Alia.] A. 0. U.' W. OF KANSAS if.' DUENSING. 919 ANCIENT ORDER OF : UNITED WORKMEN' 'OF . KANSAS 1): '• • ,". DUENSING..!•:, h“•.1 . 4-4419 •.i.:":' deliveked:Junb 29,1936. ' •' ../ . EVIDENCE — PRESUMPTION AGAINST SUICIDE.—Tne: inftinct bf sea-preservation 'will be recognized even in cdses w ere the proof shows that death is self-inflicted; sb 'Wherei . in ari• action oir !an • insurance ' policy, the defense was that insured committed :suicide, the testimony' indicated' ,that more ,than one . bullet .m•ust • have pierced the heart, , and, a doctor was called ,as an, expert witness, and he testified that one might, under sUch circunistanees, live for some time—even if the pneumagaStric nerveys hit; it Is possible for one to live foi- dnYs—the jUry h g d' the iighf 'to
920 A. 0. U. W. OF KANSAS V. DUENSING. [192 weigh hfs testimony in the light of common experience. Evidence held sufficient to . sustain verdict against suicide. Appeal from Arkansas Circuit Court, Northern . District ; W. J. Waggoner, Judge ;- affirmed. Chrisp & NiXon, for appellant. Wm. C. Gibson, W. A.•Leach and Ingram & Mohr, for appellee. BUTLER, J. Dr . Theodore C. Di-tensing died from the effect of pistol shot wounds sustained about 3 :10 p. m. on June 28, 1935. At the time . of his. death he was insured in the appellant order in the sum of $3,000, the beneficiary being Anna F. Duensing, the appellee. The Policy was in full force and effect at the tiine of Dr. Duensing's death, and this action was instituted by the beneficiary against the appellant to reCover for the death . of the insured. • The policy provided that; if the insured comMitted suicide within two'yeárs 'from its date, whethei he were sane or insane, the only liability shOuld be fer an amount equal to the contribiltions paid to the order. This stipulation was pleaded as a defenSe to the, action on the theory that . the insured had'eommitted suicide. The trial resulted in a verdict and judgment in fav . Or of the appellee for tbe amount sned for. From that 'judgment • i's . this appeal. Dr. Duensing was ldlled near Belleville, Illinois, while on a passenger traM en route from Memphis to St. Louis in a vestibule between a day coach and a Pullman immediately to its rear. The sole ground urged for re-versalis that the undisputed evidence establishes appellant's affirmative defense and, therefore, the verdict of the jury is without substantial evidence to support it. This contention is based upon the testimony of Edward Flannigan and Charles R. Peters; special agents of the Illinois Central Railroad. The effect of, the testimony of Mr. Flannigan is that he first saw Dr.. Duensing when he (the witness) was boarding the train. The doctor -was standing upon the steps of the day coach holding to the grabirons on each side and leaning with his head out of the vestibule. The conductor was heard to say something to Dr. Duénsing . and to Smoky Allen. The witness did not understand
ARK.] A. 0. U:. W. OF KANSAS V. DUENSING. 921 what Allen said, but did hear the doctor say, ."No, I wouldn't do anything like that—I have too much sense." When the doctor said this he stepped back, and witness passed into the day coach and took a seat. The doctor came into the same coach and sat down some two or three seats to the rear of the witness and across the aisle from him. This occurred while the train was at its station stop and Charles Pefers, a fellow officer of Flannigan, got on the train just as it started to pull out and entered the same coach: With witness and the doctor. The conductor, with whom witness appeared to be on friendly terms, soon came in, and while, be and witness were standing in the aisle talking together, in the language of the witness, the following occurred: . "T heard two shots fired in the back end of the coach. I tnrned and there was a pause of a. few seconds and I heard some one holler he was killing himself. I ran to him, and as I was running down the aisle he was standing between the two coaches. He put the gun to his breast, looked ' down at it and shot three shots 'into bis breast, and fell on his back." The train was headed north and, describing the point where the • tragedy occurred, the witness said: "It happened on the north end of the coach south of the day coach." This was the Pullman immediately to the rear of the day coach.. Continning, the witness Said, "I was about fifty feet, I guess—forty or fifty feet—when he shot the first two shots. I didn't see very much." Witness stated that when he heard the first shots he ran down the aisle in 'that direction and met a . negro . man running toward him. The day coach door was open . and the door to the Pull-man was closed. When witness reached the doctor he was dead and a pistol was lying beside him near his right hand. Witness picked up the pistol and handed it to Mr: Peters who was , there "a second after I was." Witness described the pistol as a Smith & Wesson squeezer ham-merless of the revblver type carrying five cartridges,' all of which had been exploded when he picked it up and examined it before handing it to Mr. Peters. This weapon required pressure to be exerted on the handle before the trigger could be pulled or tbe cylinder revolved. .
9 9 2 A..0. U. AV. OF KANSAS v.: DUENSING. [192 ., The testimony of Flannigan tends strongly to 'sustain the • defense,•of suicide and, would be cOnclusive' on this question if !it .were :consistent in its. •entirety . and . if .there were no eircuinstances ih: evidence • or . • testimony :tending to :6:inflict/with . it.: -St: Lotiis-Sain:Francisco: Co: Hai;inio* ;179 'Ark.. 248, • 15.S.];W: (2d): 310. • 'Peter's testified in effedf that 1601: he boarded the 'train 'and 'Started 'thrOUghYthe car lie heard three SticCession and Saw' 'Flannigan nin that WitnegS: followed Flannigan and When', he readlied the 'rear 'end of *the CoaCh' -the . .doctor' WaS- lying dead' -On-the Piatforni.' Within the' vestible; He Was on hiS Ieft Side, :" all. donbled *-Under." H The 1)60 *as just a'feW inches 'frOM the left hand door''of, the vestibule Which , was abotit' three feet froin its center; and 'a pistol waS , Wing' Close' tO the' oght shOulder , a' little waY from tbe neek:' As Flannigan- 'ran down , the aisle With' Witness 011oWing; When the . fOriner'had readied a , Point-a little beYond the center tOivard 'the rear of the cOach, he 'met a negro whO , Was , running uP- the' aisle in the oppoSite direc -tibn Thifs" negro -. APpeared -to.. be s badly frightened,'and -WaS . Coming' from:the . Platform of the daY-' coach tOWard which' 'witnesS: 'and Flannigan-Were rnnning: After 'the * To' pa'Ssed. Flannigan he :fell into a : Seat` befOre Witness reached hini. WithesS''Stated the ogiv§ name Walter OWen' and , at the'time of the testiniony 'he Was living in' St. LOgs,.his":iiame'and" address- both, being k i noivii . tO'Vith'eSS' at' 'the time : Of the' de. ath. Of Dr Dueii. sing. ' WitneSs 'further' Stated that he saw' the' negro and Flannigan 'meet'in- the aisle at about the tithe the:three shots *de fired; that:When-he heard' the .shotand started running dOWn 'The 'aisle lie"didn't know what had' 'hap'-. pened: After describing the position of the doctor's body and theflocation of the, pistol, with Teference to it, ,the witness testified that, a brakeman who had arrived on.,the scene . , a . :Mr., pipple, reached o,ver, picked . up . .the pistol andt handed it to , him. The , witness described how . the, pas-, sageWaY : between the two' cars Was forined :to 'the' effeCt that - -pIatforrn eiftends a' Short- di:stance' from- each 'car and they 'are ; joined . together: . 011*each side of' these . platforms are :doorways . .with steps which can be let doWn
ARK.] A. O. W. OF KA: NSAS V. 1 DITEN'stho. .923 4nd, • swhen .theses*are raised -and - the doors • are. Closed, i . the ,. platforms : are There are curtains, made ,of canvas which . sare • part of. the :vestibule. When witness reached the body • he Made an 'ekamination of the vestibule • and found- the'doors cloSed so • that the space between . the tWo :car§ was. inaloSed, except:for door "which- .opened --into the day Coach frem Which- he had , cOme. In• testifying as , .to the condition of . the•vestibille,:;Mr.: Flannigan had . stated-in answer , to- questions • pro.pounde'd :on cross-examination that he did , not sremember. whether •ornot the passageway between the two coaches was open,! that it generally was, hut "There iS . a curtain dn . and.he . could snot say Whether , thiS • curtain .was 'opens)Or 'closed a-t the.time •of the tragedy.: .. s . • s • .•: 1.•s . !:, •s :•• •. t; • : -,6, • "• • .It wffl be seen that. :there :are conflicts in . thatesti-mdny Of .the Witnesses, Flannigan and- PeterS, o as to:material facts and inferences -which may. , he - drawn from the testimony of Peters tending -to render the,..acctiracyjOf the , statements of Flanniga.n doubtful. It . will be remembered that Flannigan testified' that she- Sakii 'the dOctor fire 'the last three shots . Peters, -iiThb WAS imMediatelY behind ' Fla.nnigan,' .. Stated that he did' not see the } .Shots .• ;fired 'becanse Flannigan' waS in • hiS WaYi • BY thC . SaMa :token, Flannigan 'S vision . Was' 'beinid 'to-haVe been' 'ObSOnted 'by tha , negro whd was 'running toWard hind • dOWn 'the nauow passageway between . the 'seats.; ACCording . tO Flannigan, • th d 'doctor niuSt • have- died iiinnediAfely dild.'withont a Struggle, and if 'Peters is : Correa : as:to the • liiCatiMi 'Of bOdy it might ' reasonably 'ai p pear 'that ' Flannigan 'conld net hate . Seen Dr. DitOifiiig'Wheli the last , three shotS 'fired even though 'the frightened . 1100. '6'bl:id 'n'ot .his WaY. There' are' fnfther • cOntradietions th'e"teStiMony Of . Flaningan and Peter§ ; the lOcatien Of 'the' istid With relation -CO thabOdY and Whe'pickedit'snij; Flanniian .says one thing 'and Peters' 'another . Flannigian'Stg6a that the pistol:lay by the right hand of the deceased and that .he picked it up, examined it, and handed it,t,oPeters:, . while the latter says -that' the . pistol lay near the, right shoulder of• the body,,near the neck -and. thatit Nas one Dipple. who pickediit
924 A. 0. U. W. OF KANSAS V. DUENSING. [192 The circumstances as narrated by Peters and the conflict between his testimony and that of Flannigan raise a doubt as to the accuracy of Flannigan's testimony which may be indulged without reflecting upon the integrity of the witnesses, for nothing is more certain than that human perception and memory is far from infallible. When we consider the strong instinct of self-preservation which exists in . all sentient creatures and finds its 'highest example in man, the doubt as to the testimony of Flan-nigan becomes stronger. This instinct is generally recognized by the text writers and the courts, and is said to create a presumption against suicide even where the proof shows that death is self-inflicted. Grand Lodge A. 0. U. W. v. Banister, 80 Ark. 190, 96 S. W. 742. This presumption was recognized and applied by this court in a number 'Of cases ; notably among these are Eminent Household of. Columbian Woodmen v. Matlock, 144 Ark. 126, 221 S. W. 858, and Guardian Life Ins. Co. v. Dixon, 152 -Ark.. 597, 240 S. W. 25. , In the Matlock case, Mrs. Matlock . was heard talking to her husband in pleadin o. tones by a nem- neighbor, and at this time 'Matlock fired b a shotgun at his wife, severely wounding her. He immediately walked out of the room in which . the shooting occurred Almost . instantly the gun was heard to fire again . and 'Matlock was found with his chin and face shot away and the gun, a double-barrel shotgun, lying parallel with his body.. There was nothing in the testimony indicating that Dr. Matlock had contemplated suicide. This court was of the. opinion that the theory of suicide appeared to be more probable than any other. Under the circumstances of that case, the court affirmed the judgment of the lower court, holding that the death of Matlock was not as a matter of law the result of suicide on . the ground that the question of probability was one properly submitted to the jury. • In Guardian . Life Ins. Co. v. Dixon, 152 Ark. 597, supra, the testimony was to the effect that Dr. Dixon had an altercation with a. Mr. Vaughan in the office of Mr. Burkhart, an attorney, and in the presence of a Mr. Buchanan. Without warning, Dr. Dixon
ARK.] A 0. U. W. OF KANSAS v. DtTENSING. • 925 drew • a revolver . and shot Vaughan, who fell to the floor insensible. Blirkhart -led Dr.- Dixon out of the room••and entered a , . connecting office for the purpose of. telephoning. , He heard a shot and, turning in an instant, .saw Dr: Dixon falling to the floor..Buchanan, who had Temained in the rooin where Vaughan had been shot, testified that.afterBurkhart had led Dr. Dixon out of the door, he came back into the•roorn, 'looked' 'down for a moment at. ,Vaughan lying .011 the floor, then placed the pistol to hi's head and shot hithself, immediately falling dead with hiS face' on the floor. This court, in affirming • the judgment :of. the lower , court against suicide, noticed the settled rule of practice against disturbing a verdict on appeal unless it appears to be against the uncontra-dieted- evidence and.every re'asonable inference deducible therefroni. The. circumstances in the'Dixon case tending :to 'dispute the testhnony of eye-witnesses to the tragedy were also. nOticed by the . court. Among these was- the fact that no powder bnrns aPpeared near the , location of the 'wound which was. thought to be significant, al-• though from , the testimony it appeared that.the pistol was loaded with smokeless:powder which: would not cause powder burns.,:Certain bruises were found on the head and face of the deceased*whichmight-havebeen explained by his falling on. the 114:ion A person in• a room underneath that where the- shooting . occurred, imm.ediately before the shots were fired, heard some' noise in the room above . from which testimony the jury might have inferred that there . was .. 1̀ ` a . scuffle of some . kind going . ..on in the .roorn'.' before . the, third shot was , fired. There. was also some testimony tending, to show that Buchanan had testified at the; coroner's . inquest somewhat differently from his . te. stimony . at the trial. The Court observed that the testimony . -of Buchanan and . Burkhart was not so consistent with itself that it, overcomes , the circumstances tending to contradict it. The court stated its conclusion as follows : We cannot. say, as a-conclusion of law, thatthe ,evidence is not legally:sufficient to support the verdict, -when viewed in the light of all the surrounding cireurn-'stances and the presumption -against self-destruction. Where reasonable men may differ as to the legal suffi.-
926 A: 0.. U. W. OF KAiVSAS V. DUEN§IN6. ; [192 eiency Of; the'evidence, the jurY, and not this court npOn •appeal, must determine the issue: '•'.;.‘ -;; . . ;We ate • of the opinion. that in. the , instant. case• the circumstanCes . 'tending to -cast. doubt: Upon the :aceuracy of: the testimOny . of : Flannigan and against' the 'theory 'of • Suicide are lunch: stronger than those ;in the' Dixon caSeto Which . we have jusCreferred. In that ca.se ;.Dr..Dixón:was in . •an embarraSsed -financial :condition ; which led tcothe altercation. -between : hiniself . and Vaughan, .and a 'motive might be found, fen suicide in•the horror 'with .which viewed:his hasty act and the despair which iniist .haVe I been . present. -in his: mind 'when he looked at his' .victim. ; Iii the caseat; that no motive : appear:s; which. is :alwaYs • a • cogent circumstance tending to• refute a 'Suicidal: intent. • There • is not the: slightest intimation ;in the , eVidenCe .to • indicate the presence: of the ; thought "of:;S'elf-destiuctiOn .in•the mind . of-Dr.;:Dnensing. , It' apPears • that ;he -Was . , doctor; wit/1i; a satisfactory "praCtice, mei financial . diffi-; culties; of i temperate habits and , :a joia1 'disposition. ; One Of his .• patierits testified that; on , the daY/before his..death 'hei Was . in. thiS, aisnal . cheerful ? .mood, 'and' 'a f barber ';whe ..shaved...hifil ;while the, was' making; i preparatiOn for . the 'jeurneY: testified> : to ' the swine effect. I- He left . Stuttgart for St.. Louis ! by way: of f •MeniPhis. and ;While ; in Meniphis, not 'more . than: ;three !hours before his ;death,' he Sent a friend 'in . 'Stuttgart. a telegrara asking him to .. Put i np a sign thatlie Would the back; en the following . daYr rat' noori. More SignifiCant than lack ef nintiVe; howeVer;iS 'the waon Whieh 'can:S . 4'111'e death 'Of . the' de &ter. ' No . ' Pre Of ' Was Made 'that it:belonged fo' the' death' dr that he had ever had ene'. Of sumlar charadet: in' thiS PeASeSSien.l• 'the 'contrafy;" his' 'eWn'''PiStol WAS found: in hiS • traVeling hag, j'an Unleaded thittY: Leight 'Calibet j reVolVer;' and. alSo a ntiniber of 'Cartridges of that caliber Sondething had be'ciirred'betWeen . the doetet'and. SinekY Allen 'in gt 06- te the' shooting:- JtiSt ht it Was' ' Flannigan did nOt knew; SuffiCient Cause 'the' interférenCe thetrain Conductor 'and for the dectot to 'reMark, ".No, woUldn't do . anything like that.;: I have toe 'much sense."' ' :The conducter; Who was . an . available witness; was . not called, ' ;and ..what -Smoky: •llen said was-not • 'heard :by
ARK.] At' G.'• U. W., Or KANSAS- V. ,DOE.N-srso. 927. Flannigan: ••Where Allen . :went :and, what -he; did :i§ net, shown by any .testimony. It is. Within . the -of probability :that it might !have . been,another's .piStol other 7s , act . 'which, caused . the . death !of Dr. • Duensing. There Was: one . person.. also •.who perhaps ; . knew, more about: how, and, by, what , agency,. the pistol was }fired ,than any;one else, that is, the negra,, Walter, Owen, whOse residence . .. wa s known and, .who 'appellant . didt . 1-iot 3 . see. 'fit..to call . to , testify..,.•:: .,•! . • t. b ; ;:•!• - : :!: ; ' Still More' i , i . n p . o rtail . t;' as . -. . .tending te negatiVe the theory , of 'SW:6We, 'are . ' the' Imbiber and '16eation 'of .Dr: DaenSing'S'Weufids and their . 'probable'-'effeet When firSt infliCted: 'As' tendink , to sti'cirt-"appellant 's thebrY : there ■Vas' the teStinaony'o'f Flannigan and Peters that 'the dee, tori 's • ClOthing and . WOunds 'Were' .*poWder burned,: On' this phase Of the ease there is l Sothe diSpntel Qtlie r WitnesseS' Who 'earnined the' b ` odY;fouiid 'no 'indica: Hen of 'powder bninkat the' loCation 'cif the' Weifin0. It' iS argded 'by Counsel 'fel.. aPpellarit 'that the absence . of pewl ao. btro . on the bOdyi. When. VieWed by' 'appelleo's iiesSes; WaS , becatise of the embalmer'h . aft. ' • TnOe'Was té ` stiniptqiy : Offei. ed; hOWever, that 'sueli Was the' 'Ca ik it be • a draitted that there were such *Marks' on , the: cloth= ing and WenhAS, 'frOni 'their ; nature and location • the jury thight l haye . T r eaSenably' inferred 'that • the Shots.. .Were net self-inflicted.' 'Flannigan' Wa'A' 'a oliee 'offieer 'many Years eitperienee, faniiliar' With' the nse of 'firearinS 'and th'e-lOcation of the heart Within 'the Mirnan bodY: He teStii fied 'as' to'it g 'POSition that if' -a i Straight line 'Was' draWii deWnWard froin' the Chin : a Pertien . of' the' heart WOuld be l on 'each 'side of ;that 'line : and tlitit-D r D1uensing',4 Weinids' were , in the breast at the locaticin of the heart; all . fiYe Of which eel:11d be . coYered 'by the' 'of ' 'the hand. PeterS 'testified to the sanie , effeet as to' t1i6:loCatiOn, of tne Wouncl§; '§thfink that thef.eduld be' covered. With playing card v■rhiCh . ineaSures a:bent 21/2x3" . ; that 'there were :two wounds on,. the right. of . the middle ,line ,of the breast about 'an.inch apart; three on the- left slightly.less thanan ineh apart, the distance betWeen thOse .on the lef and thoSe oh the ,right was:from an inch :to 'an inch and a, half, . and they 'eonld : all have been covered, with. ,,ra
928 A. 0. U. W. OF KANSAS V. DUENSING: [192 playing Card:" From this evidence it seems reasonably certain that all five of the bullets pierced the heart of Dr. Duensing. - It is true, a physician called as an expert witness for the • appellant testified that the sheart • emild . be pierced without any serious immediate effect ;- thatit is possible for a Person shot through the heart .to live for some time; that if the pneumogastric nerve is hit it, is possible for that person to live for days; that according to witness' literature there are many cases Where a person shot through the heart recovers, .one . case :where a man lived seven days with. two bullets through his heart, and another, where' a -man,was shot ten,,times through that organ •without being killed, but the doctor admitted that a . bullet striking the heart would have . a tendency:to knock one dowir and. Li might , shock him." The jury had the , right to weigh this testimony in the light . of the corut mon- experience of the race, which doubtless it .did. posed . to the testiniony , of ;this expert witness is. the . testi: mony of a witness who was expert in . .the use of firearms and, at the time .of testifying, was an instructor. in- that art, and had been : such in the army., He , testified that he was familiar with. the effect , of. wounds, in the, vital organs, and that where one.was shot-with a thirtTeight caliber pistol in the location as iestified.to by Flannigan and Peters thatthe arm Would fall to the side and.could not be raised again; that , a bullet from a pistol.of the char: acter described w . ould have an -impact equivalent to, a force of 181 ft, pounds and• would require, a minimum pressure on the handle of, ten pounds:before the.cylinder would revolve and trigger act; that to raiSe the arm and exert such a pressure would.have been impossible after the first two shots . had , been fired. It will, therefore, be seen that . the, testimony of Flannigan to the effect that he saw the doctor deliberately -fire.the lastthree shots into his breast was not conclusive, .but was a question fOr the jury under all the facts , and circumstances. : In a number of cases we have' held the evidence therein' sufficient to conclusively establish intentional self-destruction, notably the cases of 2Etn,a Life Ins. Co. v. Alsobrook, 175 Ark. 523, 299 S. W..744, chiefly relied on by appellant in the case at bar ; "Fidelity MutuallAfe
ARK.] 929 Ins. ' Co..v.,'Wilson; 175 Ark. •1094, 2 S. W. (2d) • 80 . ; •New York Life Ins. Co. v. Wailers; 154 Ark. 831....In the Watters case there .seera to have been no circumstances tending to refutethe theory of suicide, and ill the Other .cases, including the two last-above .cited, a.mo-tiv.e ;for suicide appears, :either for shame; and fear, of disgrace, over,mastering despair or.from melancholia in-; duce& by ;intemperate, habits , or disease:. In the instant case all:these. elements •are lacking; and,, wheo.. all :of . •the circumstances are considered and the ;legal presumption against , suicide; indulged, we• think -the case. was. properly submitted to . 4 the jury,• and . the judgment . should :be affirmed. It ,is ! so ordered,,,,. •
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.