Ziebell v. Fraternal Reserve Ass'n

ViNje, J. The salient facts attending the death of Dan E. Ziebell as disclosed by the evidence are contained in the foregoing statement. Many details that do not materially bear upon how he came to his death are omitted. From such facts in evidence only one reasonable conclusion as to the cause of his death can be drawn, namely, that he died from carbolic acid poisoning. Was such poisoning accidental or intentional? The presumption that arises from the mere fact of death is that it was not self-inflicted. Krogh v. Mod [616] ern Brotherhood, 153 Wis. 391, 141 N. W. 276, and cases cited; Pagel v. United States C. Co., ante, p. 278, 148 N. W. 878. But sucb presumption may be overcome by proof of facts and circumstances attendant upon the death showing-that it was intentional and self-inflicted. In the present case all the major facts surrounding the death point unmistakably to suicide. The letter found upon the body is almost conclusive of itself that the death was intentionally self-inflicted. When coupled with the other facts established it would seem that no other reasonable conclusion could be drawn. He purchased carbolic acid the night before and undoubtedly carried the bottle on his person. No other bottle was found upon him, so he could not have taken the wrong-bottle from his person and mistakenly have drunk from it. He made no outcry after drinking the poison though near his own home and that of others. That he was severely burned when he drank is established by the medical testimony in- the case, and it is practically a matter of common knowledge. The facts that he knew what he drank and that he made no outcry or efforts to procure help spell only suicide. The letter referred to shows not only intent, but, together with the fact of the pending divorce action, supplies the reason for the suicidal act. In view of such evidence a verdict negativing suicide would have no substantial basis for its support, and would have to be set aside. A point is made that the absence of the original letter was not sufficiently excused so as to justify the introduction of the copy. A copy was made under the direction of the coroner, the original was given to Henry Ziebell, a brother of the deceased, who gave it to his father, August Ziebell. Defendant’s attorney did not know that Henry had given the letter to his father and he subpoenaed Henry to attend the trial and bring the letter. When Henry arrived at the trial he first informed counsel that he did not have the letter; that his father had it and had refused to give it back, and that [617] bis father was then, on a timber cruise somewhere in Vilas county, whereupon defendant’s attorney issued a subpcena for August Ziebell, directing him to bring the letter, and sent the subpcena to the sheriff of Vilas county for service. The sheriff of that county made a return that after diligent search he was unable to find the witness desired. The copy was properly identified. We perceive no error in receiving it in evidence. There was no abuse of discretion in denying the motion for a new trial. Concede that it could have been proved that the deceased, from about 8 to 10 in the evening before, was in company with Marion at places other than the saloon in which Mr. Homer was bartender. At best it would only have shown either the deceased did not come into the saloon where Homer worked till 10 or after or that he was absent from the saloon 'for a couple of hours. The testimony if true would not in the least have tended to negative the fact of suicide, though it might have shown that the witness Homer was mistaken as to part of the time he said the deceased was in his saloon. The evidence would still conclusively show suicide. By the Court. — Judgment affirmed.