Canada Life Assurance Company v. Houston

• Decision Date: 12 February 1957
• Docket Number: No. 15102.,15102.
• Citation: 241 F.2d 523
• Parties: The CANADA LIFE ASSURANCE COMPANY, a corporation, Appellant, v. Charlotte S. HOUSTON, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

241 F.2d 523 (1957)

The CANADA LIFE ASSURANCE COMPANY, a corporation, Appellant, v. Charlotte S. HOUSTON, Appellee.

No. 15102.

United States Court of Appeals Ninth Circuit.

February 12, 1957.

COPYRIGHT MATERIAL OMITTED

Francis V. Keesling, Jr., Henry C. Clausen and Henry C. Clausen, Jr., San Francisco, Cal., for appellant.

Angell & Adams, San Francisco, Cal., for appellee.

Before HEALY, LEMMON, and FEE, Circuit Judges.

LEMMON, Circuit Judge.

1. Statement of the Case

This action to collect the proceeds of a life insurance policy was commenced by the appellee against the appellant in the Superior Court of Alameda County, California, on January 4, 1955. On petition of the appellant, the suit was removed to the Court below. The case was tried without a jury before Chief Judge Roche, whose Memorandum Opinion is reported in 137 F.Supp. 583.

The Court below awarded the appellee a judgment for $28,552, with interest at 7% from May 4, 1954, the date on which the proof of loss and claim were filed with the appellant.

From that judgment, which was signed on February 8, 1956, an appeal was taken on March 6, 1956.

2. Statement of Facts

On September 24, 1953, William Mark Houston, United States manager for three insurance companies, of which the New Zealand Insurance Company was the "prime employer", made written application for a $10,000 life insurance policy, subject to a "family income" provision. The policy was issued on November 3, 1953, at which time Houston was a resident of Berkeley, California.

Houston's application stated that he used "alcoholic stimulants" "socially only occasionally", and to the question, "Have you ever used them to excess?" his written answer was "No". The appellant asserts that these two answers were "material misrepresentations".

The policy contained the following paragraph:

"Suicide. During the first two years from the date of issue of this policy, suicide (whether the assured be sane or insane) is a risk not assumed under this policy; should death occur in such manner that the assurance is not effective because of the operation of this provision, the Company will pay an amount equal to the premiums paid under this policy, which amount will be paid in one sum to the person or persons who would have been entitled to the net proceeds of this policy or the first payment therefrom had this policy matured by reason of the assured\'s death."

Houston and the appellee had been married for twenty-five and a half years. His widow, who remarried on July 9, 1955, testified that "It was a very happy marriage". There were two daughters, Charlotte, 26, and Ann, 22.

On Monday, February 22, 1954, Houston died as a result of a gunshot wound suffered by him in the basement of his Berkeley home.

On the Friday before Houston met his death, he worked in his office in San Francisco, leaving there at about six o'clock. His manner that day was not different from "any other day", according to his secretary.

The following day he attended a party at his daughters' sorority house, and appeared to enjoy himself. The next day, Sunday, he went to church, and afterwards went to Lafayette to make plans for his ranches in Oregon with his two partners. At that conference "He was still very cheerful".

Sunday night Mr. and Mrs. Houston and their daughter Ann "went to dinner with the Hanscoms, * * * friends of long standing", to whose son Ronald Ann was engaged. On that occasion "he was his usual jovial self", exchanging neckties with his host. The Houstons left the Hanscoms at about 11 o'clock, and returned directly to their own home. At the Hanscom gathering, Houston had "two drinks before dinner * * * None after."

We now come to the day of Houston's death. Since Monday was Washington's birthday, in accordance with the holiday custom in the Houston household the family slept late. Mrs. Houston and Ann had gotten up at about 9:30 in the morning, but it was between 1 and 1:30 in the afternoon before Mrs. Houston went upstairs and awoke her husband. At that time, he still seemed "congenial and happy". Mrs. Houston put a glass of tomato juice for him "on the top of the stairway, the floor of the upstairs hall".

Mrs. Houston went back into the kitchen, to finish cooking breakfast for Houston and brunch for herself and Ann.

Ann was nailing a shelf in the hall outside of the kitchen. As she was putting the hammer and nails away, "Daddy came downstairs into the kitchen, and I was singing, `Oh, What a Beautiful Morning!'" Her father, with his minutes numbered, went up to her, gave her "a good morning peck on the forehead, and said it certainly was a beautiful morning".

Ann told her father that they were going to have steak for breakfast. "And he said that sounded wonderful."

Houston was dressed in his bathrobe, pajamas, and leather slippers. He was not wearing his tri-focal glasses, although he "usually wore them all the time".

Ann testified that her father looked "happy and smiling". She left him to go to the living room to speak to her grandmother, while Houston went down to the basement.

The daughter's testimony continued:

"Then I heard a bam! — and I came back into the hall because I thought my shelf had fallen, and I called to Mother and I didn\'t get an answer".

In the meanwhile, Mrs. Houston, who had heard, not a "bam!" but "a heavy thud", went down alone into the basement, and "saw Mr. Houston lying there". She was the first to reach him. She called upstairs to her daughter, "Ann, as quickly as possible, call the ambulance."

"Then I ran downstairs into the basement and saw Daddy," Ann testified.

The shooting occurred in a narrow passageway at the rear of the basement, at a point directly beneath the living room. This section of the basement was raised about 14 inches from the main level. Houston was a tall man — 6'2½" — and it was therefore necessary for him to stoop in the passageway area where the shooting occurred. The passageway area led through many stored items, such as a sofa, patio chairs, a cedar chest, sleeping bags, air mattresses, a garden trellis, some bedboards, and the like. Some of these items protruded into the hallway. The distance from the floor to the ceiling in the passageway was less than 5'11", because a police officer of that height "couldn't stand up in the area without bending over". The "light was off" in the basement when Mrs. Houston found her husband's body.

The death gun was an 1894 Winchester, .30 caliber, WPCP lever action repeater. There was "only the one exploded cartridge in it, no others".

The body was lying face down, both hands underneath. The bullet had entered in "the chest area at the front", and had come out "in the area of the shoulder blades, to the rear, the bottom of the shoulder blade area." In a bookcase in the basement there was a Manila paper sack containing two different kinds of cartridges, one of which would fit the death gun. The bag of shells was closed when the police found it. "I had opened it to look in," one officer testified.

There was an area around the "entry hole" in the chest, where "both the clothing remaining over the wound and the skin itself showed evidence of blackening from the blast." According to a police officer, that indicated that the muzzle of the gun was "Either pressing against it or extremely close, enough so that it had the same effect as if were against the body or clothing." According to one of the expert witnesses offered by the appellee, however, if a gun is right against the body, "There usually is no burn at all; the only thing that is made in that case is a dark ring around the edge of the hole when the bullet enters."

After passing through Houston's body, the bullet went through the ceiling at a slight angle, entered the back of a chair in the living room above, and lodged under the upholstery near the top of the chair. Some effort was made to get the bullet out, "but it would have required moving the upholstery from the chair, and eventually we left the bullet in place."

In support of her accident theory, which, under the policy, must be accepted if she is to recover, the appellee points out that:

It was found possible to discharge the gun by striking the hammer spur when the hammer was down on the firing pin. When so adjusted, it could also be discharged "by striking it on the butt on the floor". The lever action was quite loose and tended to open very readily. Upon opening, it would be in a position to cock and load, by closing the lever, perhaps without the realization of the person doing it. When the lever mechanism was opened, the trigger was exposed. The gun was found to have a trigger pull of between 4½ and 5 pounds.

The appellant, on the other hand, maintains that it was a case of suicide, asserting that:

The dent in the floor board was one thirty-third of an inch deep. It was similar to the recoil marks made when the gun was fired after the event by pulling the trigger while resting the gun butt on the floor board.

At the time of the shooting the decedent had bent his body over the gun until his fingers were accessible to squeeze or push down upon the trigger, and his chest-heart area was within an inch of the gun muzzle. The muzzle was three feet from the floor, which in turn was about five feet eleven inches from the ceiling. His torso had had to be a little more than horizontal to the floor.

The entry wound was a power-blasted hole at the heart area. The path of the bullet, as shown from the fact that the gun was thus positioned at a near vertical, the body bent over, the muzzle within an inch of the power-blasted heart area of the chest, was through the body, out a smaller hole in the back and at a point lower down than the front entry wound, and up to the ceiling almost vertically overhead.

There was no evidence of any kind that the gun had made contact with any object other than the floor. The only evidence relevant to the question of whether the firing had been by an accidental...