22 F.2d 952 (7th Cir. 1927), 3839, International Life Ins. Co. v. Mowbray

Docket Nº:3839.
Citation:22 F.2d 952
Case Date:December 07, 1927
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

Page 952

22 F.2d 952 (7th Cir. 1927)



MOWBRAY et al.

No. 3839.

United States Court of Appeals, Seventh Circuit.

December 7, 1927

John M. Atkinson, of St. Louis, Mo., for plaintiff in error.

Franklin J. Stransky, of Chicago, Ill., for defendants in error.

Before ALSCHULER, EVANS, and ANDERSON, Circuit Judges.

EVAN A. EVANS, Circuit Judge (after stating the facts as above).

Throughout this

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opinion, parties will be described as in the District Court.

Defendant contends that the evidence conclusively shows that assured committed suicide. Its maximum liability was therefore limited to $5,000. It further contends that, if this issue was for the jury, the court erred both in the admission of evidence and in charging the jury.

It is hardly necessary to set forth in detail all the evidence that bore upon this issue. The assured, who was 36 years old and in good health, was asphyxiated while on a short visit to Chicago. On the wall of the rooming house where he stopped, there was a combination gas and electric light fixture supplied with two buttons a few inches apart, one for turning on the gas and the other for the electric lights. Assured turned on the gas and the question was: Did he do it accidentally or intentionally?

It appeared that the assured was a dealer in farm land and had shipped live stock to Chicago. He moved from Iowa to Illinois in 1918. Shortly before his death, he lost some money on a real estate investment. His financial condition does not appear. His family consisted of a wife and two minor children. There was no evidence of unhappy or disturbed domestic relations. Upon his last trip to Chicago assured was accompanied by a friend, to whom he owed some $300. While in Chicago $200 of this indebtedness was paid. The two men remained in the city a couple of days. They attended a theater one evening. They remained in a rooming house two nights, the second night occupying different rooms. On the second day the two men drank considerable liquor. It was late when they retired, assured retaining an unfinished bottle of whisky. The room was locked and the window was shut. There was less whisky in the bottle in the morning than when the parties separated. In the morning, the landlady detected the odor of gas and traced it to the room. Upon entering the room, it was found that the gas jet was open and the assured was dead.

This, in brief, is the story. We agree with the District Judge that these facts presented a jury question on the issue of accidental death.

Upon the trial, the court received in evidence the coroner's verdict, which declared 'the asphyxiation to be accidental.' Error is assigned upon the reception of this evidence. Defendant refused to admit the reception of timely proof of death upon blanks by it furnished. It was therefore a part of plaintiffs' burden to who that such proof was seasonably furnished.

Moreover, the court charged the jury that such evidence had been stricken out, 'and you therefore must not consider the same as evidence or attach any weight whatever to the same in determining any fact or facts in this case. ' This charge obviously cured any error, if error there was, in the reception of this evidence. Likewise we think defendant's failure to admit the timely service of proof of death made this evidence admissible.

The court charged the jury respecting the presumption of law against suicide as follows: 'The court instructs the jury that...

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