Beaver v. Fidelity Life Association, 7070.

• Decision Date: 09 January 1963
• Docket Number: No. 7070.,7070.
• Parties: Faye R. BEAVER, Appellant, v. FIDELITY LIFE ASSOCIATION, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

313 F.2d 111 (1963)

Faye R. BEAVER, Appellant, v. FIDELITY LIFE ASSOCIATION, Appellee.

No. 7070.

United States Court of Appeals Tenth Circuit.

January 9, 1963.

Donald C. Vosburgh, Fredonia, Kan. (Thomas A. Wood, Wichita, Kan., with him on the brief), for appellant.

Clifford L. Malone, Wichita, Kan. (Charles E. Jones and John S. Seeber, Wichita, Kan., with him on the brief), for appellee.

Before MURRAH, Chief Judge, and LEWIS and SETH, Circuit Judges.

MURRAH, Chief Judge.

This is an appeal from a judgment for the defendant on a jury verdict, in a diversity suit on the double indemnity provisions of two Kansas life insurance contracts. The critical provisions sued upon provide in conventional terms for double the amount of the face value of the policies, if death resulted "directly and independently of all other causes, * * * effected solely through external, violent and accidental means," provided that the insurer should not be liable thereunder for any payment, if death "shall directly or indirectly result from * * * self-destruction while sane or insane." The plaintiff claimed that death resulted from accidental means within the terms of the policy, and not from self-destruction. The defendant specifically denied the claim, and alleged that death did result from self-destruction. The case was submitted to the jury on a form for special verdict, requiring the jury to specifically answer whether death resulted from suicide or accident. The jury's answer was, "suicide."

On trial, the issuance of the policies, with the double indemnity provisions, was stipulated. It was also agreed that while the policies were in force, the insured died "as a result of a bullet entering his head." The trial Court instructed the jury in accordance with the stipulations, and further told them that the burden was on the plaintiff to establish, by a preponderance of the evidence that the death of the insured was accidental, within the terms of the policy. And, in that connection, the jury was told: "There is, under ordinary circumstances, a presumption against suicide. This presumption, like any presumption, is a conclusion which the law requires the jury to make from particular facts in the absence of convincing evidence to the contrary. The presumption continues in effect until, and only until, it is overcome or outweighed by evidence to the contrary. Unless so outweighed, the jury is bound to find in accordance with the presumption; but if you believe that evidence to the contrary overcomes the presumption, then the presumption no longer exists and you should find in accordance with the weight of the evidence."

The beneficiary did not except or object to the quoted instruction on the theory of presumption, but did object throughout to the ruling of the Court on the burden of proof. Her contention was and is, to the effect that, having established that death resulted from external and violent means, i. e., a gunshot wound, the traditional presumption against suicide and in favor of accidental death operated as affirmative evidence to prove her case for accidental death, and the burden shifted to the insurer to show by a preponderance of the evidence that death resulted from causes excepted from the coverage of the policies, i. e., suicide. Inasmuch as the burden of proof may very well depend upon the evidential value of the presumption, we must consider the correctness of the trial Court's instruction with respect thereto.

As we read the instructions, they imposed the burden of proving accidental death upon the beneficiary, but gave her the benefit of the mandatory presumption in favor of accidental death, until it was overcome by contravailing evidence to the satisfaction of the jury. The Court thus impliedly ruled that contravailing evidence was sufficient to overcome the presumption (otherwise, the Court would have been required to direct a verdict for the beneficiary) but the jury was left to decide whether it had, in fact, been overcome. If they so found, the presumption no longer existed, and they were then to decide the issue in accordance with the weight of the evidence.

The law has raised up numerous presumptions, either for procedural convenience or in response to recognized social policies, or a combination of the two. The commentators have classified presumptions of this type into four different categories for evidential purposes. See: American Law Institute, Model Code of Evidence (Adopted 1942), Foreword, p. 52, and Ch. 8, p. 311; and see also Hinds v. John Hancock Mutual Life Insurance Co., 155 Me. 349, 155 A.2d 721, 85 A.L.R.2d 705. The courts have roughly classified them into two categories: (1) as a procedural tool for ordering proof, which requires a finding in favor of the presumption, unless and until some creditable evidence to the contrary is produced, in which event the presumption disappears and the Court instructs the jury as if it never existed; See: N. Y. Life Ins. Co. v. Gamer, 303 U.S. 161, 58 S.Ct. 500, 82 L.Ed. 726; O'Brien v. Equitable Life Assur. Soc. of United States, 8 Cir., 212 F.2d 383; and, Boswell v. Gulf Life Insurance Company, 5 Cir., 227 F.2d 578. And see: American Law Institute, Model Code of Evidence, Ch. 8, p. 309. (2) as a rule of affirmative evidence, which persists to sustain the burden of proving accidental death, until outweighed by the preponderance of the evidence of suicide, i. e., it is to be considered as evidence against evidence. Lewis v. New York Life Ins. Co., 113 Mont. 151, 124 P.2d 579; Wyckoff v. Mutual Life Ins. Co. of New York, 173 Or. 592, 147 P.2d 227; Allison v. Bankers Life Co., 230 Iowa 995, 299 N. W. 899; and Mutual Life Ins. Co. v. Maddox, 221 Ala. 292, 128 So. 383. Cf. Atchison, T. & S. F. Ry. Co. v. Geiser, 68 Kan. 281, 75 P. 68. Some courts and legal writers support appellant's theory of this case, by utilizing the presumption to shift "the burden to the insurer to establish that the death of the insured was due to his suicide." Dick v. New York Life Ins. Co., 359 U.S. 437, 79 S.Ct. 921, 3 L.Ed.2d 935 (following North Dakota law); and see: Svihovec v. Woodmen Acc. Co., 69 N.D. 259, 285 N.W. 447. A renouned scholar and commentator on the law of evidence has suggested that in situations like ours, where a presumption owes its origin to an important social policy, it should operate to fix the burden of persuasion. See: Morgan, Presumptions and Burden of Proof, 47 Harv.Law Rev. 59, 83; and see also 44 Harv.Law Rev. 906; and 50 Harv.Law Rev. 909. The majority of the courts seem to have embraced some form of the procedural concept. See: 95 A.L.R. 878; 103 A.L.R. 185; 158 A.L.R. 747; and 12 A.L.R.2d 1264.

The latest concept, and the one...