Connecticut General Life Ins. Co. v. Maher

• Citation: 70 F.2d 441
• Decision Date: 13 April 1934
• Docket Number: No. 6937.,6937.
• Parties: CONNECTICUT GENERAL LIFE INS. CO. v. MAHER.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

70 F.2d 441 (1934)

CONNECTICUT GENERAL LIFE INS. CO. v. MAHER.

No. 6937.

Circuit Court of Appeals, Ninth Circuit.

April 13, 1934.

F. Eldred Boland, Daniel V. Ryan, and Knight, Boland & Riordan, all of San Francisco, Cal., for appellant.

J. E. Trabucco and Vincent Surr, both of San Francisco, Cal., for appellee.

Before WILBUR and SAWTELLE, Circuit Judges, and NORCROSS, District Judge.

NORCROSS, District Judge.

From a judgment rendered upon verdict of jury in favor of appellee as beneficiary of a policy of accident insurance issued by appellant, defendant below, the latter appeals. The policy was issued on March 3, 1930, to Helen M. Rohrer, the insured, who was a sister of appellee. By the terms of the policy appellant agreed to pay the beneficiary therein named the principal sum of $7,500 in the event of the death of the insured "resulting directly, and independently of all other causes, from bodily injuries effected solely through accidental means." The policy further provided: "This insurance does not cover loss resulting from suicide, or any attempt thereat, sane or insane * * * or by disease or bodily or mental infirmity. * * *" On August 17, 1930, the insured was killed as a result of falling to the pavement below from a window of an apartment on the sixth floor of an apartment house located on Pacific avenue, San Francisco, in which she was then residing. At the time of her death the insured was the wife of J. H. Hoge to whom she was married June 20, 1930. Appellant by its answer denied that the insured came to her death by accidental means. Upon the conclusion of the evidence defendant moved for a directed verdict upon the ground "that the evidence was not sufficient, and in particular that there was no evidence to show that the decedent Mrs. Hoge came to her death by accidental means, but, on the contrary, there is affirmative evidence sufficient to justify a directed verdict that she actually committed suicide." Appellant's specifications of error relied upon on this appeal are as follows:

(1) The verdict of the jury finding that Helen Hoge met her death by accidental means, as required by the policy, is unsupported by the evidence.

(2) The verdict of the jury finding that Helen Hoge did not commit suicide, while sane or insane, is unsupported by the evidence.

The testimony and documentary evidence submitted upon the trial establishes the following facts: On Sunday night, August 17, 1930, a special police officer found the body of the insured on the pavement of the apartment house court. Her skull was crushed as a result of a fall. She was fully dressed except coat and hat. In one of her hands was a lady's handkerchief which was tied in knots. The officer observed an open window above on the sixth floor, which proved to be in the apartment occupied by the decedent and her husband. The window sill was 2 feet from the floor, 35 inches wide, and measured 7 inches across from inside to outside. The lower window sash opened about 21¼ inches. There was found beside the open window a chair. The insured was thirty-two years of age at the time of her death. She was about 5½ feet in height and weighed about 130 pounds. She was married in October, 1923, to a Mr. Rohrer from whom she obtained a final decree of divorce five years later. She had been a schoolteacher since the age of eighteen, and continued in such profession until her second marriage.

William Curtis, the police officer who found the body of the insured, testified concerning the location of the window of the apartment and the view therefrom, as follows:

"I recall that the fleet came into the harbor the day before. From the bedroom you could look right through that window and see the fleet coming in. And the further you leaned out the further you could see, because there is one wing of that house to the right and one wing to the left. There is a courtyard and outside of the courtyard there was a wall of brick or concrete intersecting a little space. It was the lightwell of the basement. * * *"

A number of witnesses called by the plaintiff testified concerning the normal character and disposition of the decedent as they had known her for many years prior to a time within a few weeks or months of her death, and prior to a time testified to by Dr. Reissel G. Ryan, a witness for defendant. The testimony of these several witnesses for plaintiff negatives any view of mental disorder or suicidal mania during any of the time covered by their testimony.

Plaintiff, appellee, testified that a few days following the death of the insured he called upon Mr. Hoge and requested the insurance policy; that he asked Mr. Hoge if she had left any papers there or anything and he said, "No"; that Mr. Hoge said "there were no suicide letters or notes or anything."

Dr. Ryan, a witness for defendant, testified that he was a surgeon, duly licensed to practice; that he was a friend of the decedent's husband, and with his mother called upon Mr. and Mrs. Hoge shortly after their marriage. He testified he observed the demeanor of Mrs. Hoge at that time; that "it was rather reserved, but within the normal range." Some "two or three weeks later," the witness testified decedent called at his office, "very nervous and very much upset. * * * She had to get up and walk up and down my office and telling my nurse and myself `This is terrible.' * * * I couldn't do anything with her. I gave her some nerve medicine and she went home. Two or three other, or probably four times, she came to my office, and acted in about the same manner. * * * Mrs. Hoge mentioned her intention to commit suicide many times, practically every time I saw her. She always contended it was necessary. She insisted that her domestic relations were perfectly happy, but said this was awful and there must be an end to it. I never did find what the trouble was; but I believe there was some mental condition. That was both professionally and personally. I am a surgeon and not a mental specialist, but there was something abnormal at least temporary." The witness further testified that he sent the patient to the St. Francis Hospital for examination or "diagnostic curetage"; that he "curetted her, and sent a specimen to the laboratory, and Dr. Moody, the pathologist, returned a report of chronic endometritis." This was described by the witness as "not a serious condition. It simply means we are dealing with a condition of the uterus, and not an acute infection." On the forenoon of the day preceding the death of Mrs. Hoge the witness made a professional call at her apartment. Concerning this call he testified:

"I offered her some medicine. She said `No, when I get out of the influence, things will be just the same as before.' She intimated she was going to do away with herself. * * * I gave her some luminal, which we sometimes give to nervous and excitable patients, and then I started to leave and she said: `Well, I will end it all. I am going to finish this business; going to kill myself.' So I went back and had another talk with her; tried to reason with her, and the luminal began to work then, and she became quiet, and I went back to my office."

The witness testified upon his return to his office he sent for her husband, and that the testimony of the witness given at the inquest respecting that meeting was correct as follows:

"I told him of her threat, and of her condition, and talked the case over; and I told him that it was my opinion that women who made those threats make them so frequently that the ones who usually make them do not carry them out, and as she was so solicitous regarding her condition and coming with trivial complaints, I thought she really wanted to live, and that it was a nervous outburst, but we wanted to observe her."

"Mr. Hoge told me that on many nights he had been kept up all night by the same behaviour; and as a means of treating her and observing her further I suggested that he go out of town and go to his country place over the week end, and get a rest for himself, and leave the patient alone and let her work it out, and I would drop in and see her again.

"To amplify that Mr. Hoge when he went with me, told me that for two or three weeks probably Mrs. Hoge would wake up and turn on the radio, and turn on all the lights, and carry on just about the same as she had in my office, saying she was very unhappy, and `This is terrible', and she could not get any sleep. * * * `she is just that nervous and I know she would not commit suicide.'"

Concerning the statement of Mr. Hoge last mentioned, the witness testified that he said to Mr. Hoge:

"Well, I don't believe there is any mental aberration there, `and probably it would be better to separate them and let him go away for a few days.'"

The witness further testified:

"On the occasion of my visit on that Saturday I neither concluded that she was likely to commit suicide nor that she was not likely to commit suicide. I did not know either way. The woman was upset. I quieted her. I wanted to send her back to her husband but they both worked on each other. He told me that it was better to separate for a day or two and calm her down. I felt that was the better thing to do, and I then suggested `All right, that is a good idea.' `You go to your country home and leave Mrs. Hoge alone, and we will see what happens.' It was my intention to go back Sunday."

Dr. Ryan responded to a professional call out of the city early the following morning. Upon his return he was advised of the death of Mrs. Hoge.

Relative to the amount of luminal administered to his patient on the occasion of his visit the day preceding her death the witness testified: "I gave her either three grains or four and a half grains. I do not...