Columbian Nat. Life Ins. Co. v. Comfort

• Decision Date: 29 June 1936
• Docket Number: No. 10484.,10484.
• Citation: 84 F.2d 291
• Parties: COLUMBIAN NAT. LIFE INS. CO. v. COMFORT.
• Court: U.S. Court of Appeals — Eighth Circuit

84 F.2d 291 (1936)

COLUMBIAN NAT. LIFE INS. CO. v. COMFORT.

No. 10484.

Circuit Court of Appeals, Eighth Circuit.

June 4, 1936.

Rehearing Denied June 29, 1936.

John S. Leahy, of St. Louis, Mo. (Lyon Anderson and Leahy, Saunders & Walther, all of St. Louis, Mo., on the brief), for appellant.

John M. Holmes, of St. Louis, Mo. (Thompson, Mitchell, Thompson & Young and W. H. Woodward, all of St. Louis, Mo., on the brief), for appellee.

Before GARDNER, WOODROUGH, and THOMAS, Circuit Judges.

THOMAS, Circuit Judge.

Appeal from a judgment on a verdict rendered in a suit on an accident insurance policy insuring "against loss resulting from bodily injuries, effected directly and independently of all other causes through accidental means."

The insured, Norman B. Comfort, husband of the beneficiary, appellee herein, was killed January 27, 1934, by a shot from a revolver. The appellant claims that he shot himself intentionally, and the appellee that it was accidental.

At the close of the evidence appellant moved for an instructed verdict on the grounds that: "(1) The evidence is insufficient to justify a finding that the death of the said Norman B. Comfort was accidental * * *; (2) the preponderance of the evidence is consistent only with the theory of suicide and inconsistent with any reasonable hypothesis of death by accident."

The motion was denied by the court and, the jury having found for the plaintiff, judgment was entered on the verdict. The ruling of the court on the motion is assigned as error.

The question before this court upon appeal, therefore, is whether there was any evidence upon which a verdict for appellee might properly be found. Lumbra v. United States, 290 U.S. 551, 54 S.Ct. 272, 78 L.Ed. 492. In deciding this question we assume as established all the facts that the evidence supporting appellee's claim reasonably tends to prove and that there should be drawn in her favor all the inferences fairly deducible from such facts.

The burden was upon appellee to prove that the cause of death was accidental. Lincoln National Life Ins. Co. v. Erickson, 42 F.(2d) 997 (C.C.A.8). She need not, however, prove by direct evidence that the death was accidental, but the fact may be deducible by inference from other facts proven, that is to say, it may be established by circumstantial evidence. United States Fidelity & Guaranty Co. v. Blum, 270 F. 946, 952 (C.C.A.9); Wells Fargo Bank & Union Trust Co. v. Mutual Life Ins. Co., 66 F.(2d) 890, 894 (C.C.A.9); Gunning v. Cooley, 281 U.S. 90, 94, 50 S. Ct. 231, 74 L.Ed. 720.

Counsel for appellee contend that she is aided in sustaining the burden cast upon her by the presumption against suicide. This is not true, however, in a case of this kind where there is evidence pro and con upon that issue which would sustain a verdict of a jury either way. Del Vecchio v. Bowers, 296 U.S. 280, 56 S.Ct. 190, 80 L.Ed. ___. The only office of the presumption is to control the result where there is an entire lack of competent evidence. Such presumption never has the quality of affirmative evidence; and when substantial evidence has been produced both in support of and in opposition to the theory of suicide, and it permits an inference either way upon that issue, the question of suicide or not must be determined by the jury upon the whole body of the evidence and not by the court.

The only question for determination upon this appeal is whether, considering the evidence as a whole, and viewed in the light of the foregoing rules, the jury was warranted in drawing the inference that the cause of death was accidental. So viewed the facts and circumstances in evidence bearing upon this issue may be stated briefly.

Insured was 45 years of age, married, and had a daughter 19 years of age. He lived at home with his family, and was happy and jovial. He was known as a man of determined and forceful character. He was engaged in the real estate business and had accumulated some property. The financial depression following the industrial collapse of 1929 had affected his affairs unfavorably. But he had become fee appraiser for the Home Owners' Loan Corporation in St. Louis county, Mo., several months prior to his death from which source he had a lucrative income. In January, 1934, the month in which he died, his earnings aggregated $1,525. He spoke optimistically of his business prospects to his friends on various occasions during the last six months of his life.

He was in good health, about 6 feet tall, weighed approximately 210 pounds, and was physically strong. He was popular with his friends and aspired to be the candidate of his political party for Congress. He was a major in the American army during the World War and had a record for services at the front in France.

Insured's death occurred at his home about 9:45 o'clock in the evening. He had dined at home that evening with his wife and daughter. They discussed sending the daughter away to school the next year, and planned a party for some friends for the following Thursday evening. A new automobile had been purchased by him which had not yet been delivered, and they discussed who would drive it most of the time. After supper he entertained a number of friends and business associates at a bridge party at his home. Those present were Frank Fisse, a lawyer; Hugh A. Bergs and Sylvester C. Judge, Jr., two of his business associates; Lon Harlow, an insurance agent; and Richard Gruner, an old friend. The party had been arranged for earlier in the week. They had played bridge together regularly for many years.

On this particular evening the first guests to arrive were Lon Harlow and Richard Gruner. They arrived about 8 o'clock and were met at the door by Mr. Comfort, and, according to Gruner's testimony, the insured was at the time in a jovial and happy mood.

He remarked to Gruner that the latter had never before been in his new house, and after some further conversation proceeded to show him through it. They went to the second floor and stopped for a while in Mrs. Comfort's room. Mrs. Comfort had retired to her room before her husband's guests arrived. Gruner further testified that they then went through the balance of the second floor, including a room that he had fixed up for his mother-in-law, who was coming from California to live with them. They talked for a time about her coming, and Comfort asked Gruner to go with him to the station to meet her the following Tuesday. They all then went to the sunroom adjacent to the living room, and the bridge game began. Mr. Judge had not arrived at that time, and Mr. Comfort did not play in the first few hands. During the first rubber the cards were not running favorably for Mr. Fisse, and he remarked, "These are awfully bad cards; better get some different cards," to which insured replied, "Why, these are very fine cards." The cards they were playing with at the time carried on their backs advertising of Lon Harlow, who at the time was Mr. Fisse's partner. Insured then said, "These are very fine cards; these are Lon Harlow's cards," to which Mr. Fisse replied, "I want some with pictures on them." In the meantime, Mr. Judge had arrived, and Mr. Comfort joined in the game. At the conclusion of the third rubber there was a discussion of the play and thereafter insured, who had lost the rubber, remarked to Mr. Fisse, "I think you are right. I think some new cards are in order, and I will get some." That was about 9:30 o'clock. He then asked if anyone wanted a drink. All declined except Mr. Bergs, whereupon insured went to the kitchen and returned with a gin rickey, which he placed in front of Mr. Bergs. The latter tasted it and said, "Norman, you will never learn to make a drink for me," and when asked what was the matter with it, said, "You know what is the matter with it." Mr. Comfort then laughed and went to the kitchen and returned with a piece of lemon and squeezed it into Mr. Bergs' glass and said, "Now, try it," to which Bergs replied, after tasting the drink, "That is all right."

Mr. Comfort, the insured, then stepped out of the room, leaving his guests. His daughter saw him going upstairs. In from one to two minutes after he left the room the guests heard a sharp sound, a crash, a thud. One of the guests described it as a slam as if some one had slammed a door very violently, and then a jar as though a heavy object had fallen. Someone said, "I think it was a shot." The guests in a state of excitement went in search of insured. He was found shortly in his room on the second floor of his residence shot through the head, but still alive.

The insured's bedroom in which he was found opens off the hall on the second floor. The entrance from the hall is at the south end of the room. As one enters, the door swings to the right. The opening of the door is two feet eleven and one-half inches from the corner...