Baciocco v. Prudential Ins. Co.

• Decision Date: 14 November 1927
• Docket Number: No. 17619.,17619.
• Citation: 22 F.2d 700
• Parties: BACIOCCO v. PRUDENTIAL INS. CO. OF AMERICA et al.
• Court: U.S. District Court — Northern District of California

22 F.2d 700 (1927)

BACIOCCO v. PRUDENTIAL INS. CO. OF AMERICA et al.

No. 17619.

District Court, N. D. California, S. D.

November 14, 1927.

I. F. Chapman, of San Francisco, Cal., for plaintiff.

Knight, Boland & Christin, of San Francisco, Cal., for defendant Prudential Ins. Co. of America.

Jones & Dall, of San Francisco, Cal., for defendant Ertola.

ST. SURE, District Judge.

Plaintiff sues to recover upon a policy of insurance issued upon the life of Arnold Ertola, payable to plaintiff as beneficiary, for the sum of $5,000, with $5,000 additional in event the insured should die as a result of injury suffered through "violent and accidental means." The policy contains a provision relative to suicide, which enters into the determination of the case. It reads as follows: "If, within one year from the date hereof, the insured shall die by suicide — whether sane or insane — the liability of the company shall not exceed the amount of the premiums paid on this policy."

Plaintiff and Ertola were business partners. On May 8, 1925, each took out a life insurance policy for the same amount, and each named the other as beneficiary, describing him as "partner of insured." One premium on each policy was paid from the partnership funds. Plaintiff asserts that the purpose of this mutual issuance of policies was to protect the surviving partner against business loss which might occur by reason of the death of the other partner.

Zelia Mary Ertola, named as a defendant, is the widow of Arnold. It is admitted that Arnold Ertola and Zelia Mary Ertola were married in 1918, and continued to be husband and wife, domiciled in California, until the death of Ertola. The surviving wife claims, under the laws of California, one-half of the proceeds of the policy, upon the ground that the same constituted the community property of herself and husband.

Before the trial defendant insurance company deposited with the clerk of this court the sum of $5,000 to the credit of plaintiff, and gave notice to parties that it would thereafter move for satisfaction of judgment without further costs to it.

The undisputed facts show: Ertola was 29 years of age when the policy was issued. He had a wife and two children. He was a temperate, industrious man. On April 14, 1926, he made a trip to Ukiah, returning to San Francisco in an automobile previously hired by him. He delivered the automobile at a garage on Fell street, San Francisco, about 2 o'clock in the morning of the 18th, when he held a 15-minute conversation with the auto owner, who is certain he had not been drinking, and to whom he appeared in every way rational. Six hours later his lifeless body was found in the ocean, lying between rocks near the Cliff House. The body was fully dressed; the hat near by. The clothing was in good condition. One of the hip pockets "looked like it had been pulled out or had been emptied." It was necessary for the life guards to hoist the body about 25 feet, and it may have been dragged a little over the rocks. Decedent's nose was fractured, and there was a small laceration over the left upper eyelid. The autopsy surgeon stated that death was caused by drowning.

The parties are agreed that, if Ertola committed suicide, there can be no recovery under the terms of the policy; that, if he died by natural means, recovery to the extent of $5,000 may be had; that, if he died as a result of injuries suffered through "violent and accidental means," $10,000 may be recovered.

Defendant insurance company assumes, as it must, the burden of proving that Ertola committed suicide. The action of said defendant in depositing $5,000 in court to the credit of plaintiff in satisfaction of his claim weakens the argument advanced in support of its theory of suicide. It is urged, however, that the evidence shows that Ertola was a party to a liaison lasting several months and until his death, and also that through Ertola's waste or neglect the partnership's finances were in a bad way. It is true there is evidence tending to show that Ertola was a philanderer, and concerning the partnership affairs the evidence also shows that, about a year before the death of Ertola, plaintiff and he became partners in a small sheet metal business. At the outset plaintiff advanced $2,600 for the purchase of the business, and Ertola gave plaintiff his promissory note for half that amount in payment of his one-half interest. It would seem that Ertola was the practical man in the business, as he personally did most of the work. It was natural, under the circumstances, that he should assume active management of affairs.

But the surviving partner has no complaint to make of Ertola's conduct in any particular. He says that Ertola was an honest man and that he left his accounts in fair shape. So, for aught that appears, neither Ertola's philandering nor his conduct of partnership affairs shows a motive for suicide. Defendant insurance company has failed to sustain the burden of proof placed upon it. Besides, the presumption of law is that Ertola did not commit suicide. See Neasham v. New York Life Insurance Co. (D. C.) 244 F. 556; Jenkin v. Pacific Mutual Life Ins. Co., 131 Cal. 121, 63 P. 180; Wilkinson v. Standard Accident Ins. Co., 180 Cal. 252, 180 P. 607; Tabor v. Mutual Life Ins. Co. (C. C. A.) 13 F.(2d) 765; Wilkinson v. Nat. Life Ass'n (Iowa) 211 N. W. 238.

The evidence shows that Ertola...