Klumb v. Iowa State Traveling Men's Ass'n

McClain, J. — Plaintiff sues as beneficiary under a certificate of accident insurance in the defendant asso [520] ciation. issued to her husband, John Jacob Carl Klumb, a member of said association, and alleges that the death of her husband occurred by violent, external, and accidental means within the language of the certificate entitling her to the benefits specified on the happening of such an event. It is conceded that plaintiff had the burden of proving the death of her husband by such an accident as described in the certificate, and we proceed to state briefly in narrative form every fact relied upon by the appellant as tending to show such accidental death. The decedent, a cigar manufacturer, forty-two years of age, who had previously been in good health; left his home in Des Moines on the morning of August 8, 1906, at about seven o’clock, in good spirits. He was last seen about half past two o’clock on the afternoon of that day on Locust Street, in Des Moines, where he engaged in a conversation with a friend with reference to prospective arrangements for holding the usual annual picnic of the German Turners Society at some place along the Des Moines River, instead of ' at Ashworth’s Grove or at Clegg’s Woods, in the western part of the city, along the Valley Junction Interurban Line, where such picnics had usually been held, and in this conversation he said he was going out that afternoon to Clegg’s Woods and Ashworth’s Grove to see what condition the grounds were in at that time. The tract of land known as Clegg’s Woods lies on both sides of the Valley Junction track about a half' mile west of Tngersoll Park, and Ashworth’s Grove is just north and west thereof. These tracts lie west and south from the golf links of the Des Moines Country Club, from which they are separated by a road. On the 24th day of September following the body of deceased was found in a ravine in the woods west of the golf grounds above referred to at a secluded place difficult of access. The coroner was called, and found the [521] body apparently as it had lain for some time -undisturbed, close to the edge of a little stream and near the foot of a tree. The body had evidently been there during a hard rain, and a part of it submerged by the stream. It was badly decomposed, the whole of the abdomen was practically gone, the thoracic cavity was denuded of all tissue, leaving the ribs standing out. The body looked, as though it might have been macerated and then kiln dried. The clothing on the body consisted of a light summer coat, a soft shirt, and ■ pantaloons. It could not be determined on examination whether there had been an undershirt. In the shirt there was a round hole to the left of the median line and about an inch or two below the apex of the heart, a hole into which as a witness testified he could insert the end of his little finger. This hole as the witness said was about the’ size of a hole which would be made by a .32 or .38 caliber pistol bullet. There was no signs of powder marks. The hole was such as might have been produced by worms, flies, or other insects or crickets. There was no corresponding hole in the coat or shirt such as would have been produced if the bullet had passed through the body and come out at the back, nor was there any indication of a bullet having struck any of the bony structure of the body, nor was any bullet-found in the body. On the body was found a watch and a small sum of money, and a half-pint whisky flask. The shirt, as testified by plaintiff, had been ironed the day before deceased put it on, the morning of his disappearance, was a good shirt without holes, and had not often been worn. [522] 1. Accident insurance: cause of death: presumption. [521] The theory of the appellant is that the death of deceased was due to a bullet penetrating a vital part of his body, and that this was a stray bullet from a pistol or small rifle for there are presumptions against felonious homicide and suicide. Preferred Acci. Ins. Co. v. Field [522] ing, 35 Colo. 19 (83 Pac. 1013, 6 L. R. A. (N. S.) 822, 117 Am. St. Rep. 198; 9 Am. & Eng. Ann. Cas. 946, and note); Travelers Ins. Co. v. McConkey, 127 U. S. 661 (8 Sup. Ct. 1360, 32 L. Ed. 308); Taylor v. Pacific Mut. L. Ins. Co., 110 Iowa, 621. 2. Same: circumstantial evidence: sufficency. The only evidencé tending to support this theory, aside from the fact of the hole in the shirt of deceased, consisted of testimony of two street car employees, who during the summer of 1906 ran cars on the Valley Junction Interurban Line which passed within about a quarter of a mile of the place where the body of deceased was found, that during that summer hunters with guns frequently got off the cars, and went northwest into the woods in which the body was found, and that hunters were in there nearly every day after squirrels. On cross-examination neither • of these witnesses was able to say that he remembered such hunting during the month of August. We think that the evidence was not sufficient to take the case to the jury on their theory. The circumstances proven go no further in probative effect than to suggest the possibility that a bullet penetrated the body of deceased causing the hole in his shirt, and that the resulting wound produced death, and the further possibility that such bullet was accidentally fired, and not with the intention that deceased should be struck thereby. No weapon was found near the body, nor was there any other suggestion that a bullet had penetrated the body of deceased causing his death, save that indicated by the round hole in his shirt of about such size as that which might have been caused by a bullet. While it may not be safe to say as a rule of' law that inference can not be added to inference for the purpose of proving a fact [523] by circumstantial evidence, yet it is true that every additional inference necessary in connecting the supposed cause with the result lessens the weight to be given to the circumstantial evidence, and the inference may become so remote that the court is required to say as a' matter of law that the proposed evidence is insufficient to go to the jury. “It has been found to be a wise and safe rule to require circumstantial evidence to go so close to the fact to be proved that it must be the immediate and direct inference therefrom. Any other rule would result in great uncertainty. If the ultimate fact should be drawn from intervening inferential facts, the probability of its correctness would be much weakened. It would be a probability based upon a probability. The law will not tolerate such uncertainty.” Supreme Council v. Boyle, 10 Ind. App. 301 (37 N. E. 1105). And see Wigmore, Evidence, section 30. It is a general rule in determining whether the circumstances relied upon furnish any evidence whatever of the conclusion sought to be drawn therefrom that the facts which the evidence tends to establish must be of such nature and so related to each other that the conclusion is the only one that can fairly or reasonably be so drawn. It is not sufficient that they are consistent with such conclusion if they are equally consistent with some other conclusion. Gibson v. Iowa Central R. Co., 136 Iowa, 415; Neal v. Chicago, R. I. & P. R. Co., 129 Iowa, 5; Kling v. Chicago, M. & St. P. R. Co., 115 Iowa, 133; Kennedy v. Chicago & N. W. R. Co., 90 Iowa, 754; Wheelan v. Chicago, M. & St. P. R. Co., 85 Iowa, 167; Daugherty v. Chicago, M. & St. P. R. Co., 87 Iowa, 276; Asbach v. Chicago, B. & Q. R. Co., 74 Iowa, 248. The cases relied upon for appellant are not inconsistent with this statement of the rule. In Huggard v. Glucose Sugar Refining Co., 132 Iowa,, 724, there was a presumption to assist the inference which was sought [524] to be drawn from circumstantial evidence, and in Bryce v. Chicago, M. & St. P. R. Co., 129 Iowa, 342, it was beld that the rule was not to be applied to each particular one of tbe circumstances relied upon together as constituting evidence of the fact to ,be established, but that all should be considered in determining their probative force. Taking all the circumstances which the testimony in this case tends to establish, there was no better reason to attribute the death of deceased to a wound inflicted by a stray bullet than to attribute it to some of -the maladies which, as is generally known, sometimes produce death in cases of persons apjmrently in good health. The judgment is affirmed.