CROME v. Travelers Ins. Co.

• Decision Date: 16 February 1926
• Docket Number: No. 7040.,7040.
• Citation: 11 F.2d 350
• Parties: VON CROME v. TRAVELERS' INS. CO. OF HARTFORD, CONN.
• Court: U.S. Court of Appeals — Eighth Circuit

11 F.2d 350 (1926)

VON CROME v. TRAVELERS' INS. CO. OF HARTFORD, CONN.^*

No. 7040.

Circuit Court of Appeals, Eighth Circuit.

February 16, 1926.

Frederick H. Bacon, of St. Louis, Mo. (Edward W. Foristel and James J. O'Donohoe, both of St. Louis, Mo., on the brief), for plaintiff in error.

Frank H. Sullivan, of St. Louis, Mo. (James C. Jones, Lon O. Hocker, Eugene H. Angert, and James C. Jones, Jr., all of St. Louis, Mo., on the brief), for defendant in error.

Before KENYON, Circuit Judge, and YOUMANS and FARIS, District Judges.

FARIS, District Judge.

Plaintiff in error sued defendant to recover on a policy of accident insurance on the life of one Kalter, deceased. There was a verdict for the defendant, obviously upon the defense that the insured had committed suicide while sane, and plaintiff, who is executrix of insured, brings error.

The petition of plaintiff counted upon death by an accidental shooting of insured without averring whether the shot was fired by insured or by another; the answer was a general denial, which was a proper pleading, under the state practice, by which to raise the defense of suicide, in an action on an accident policy. The facts are hardly controverted. Briefly they run thus:

Insured, the manager of a corporation operating on the fifth floor of a building in St. Louis, took out the policy in question in the year 1913. It was for $5,000 and ran for one year, but there was a provision by which the amount of the insurance would be annually increased upon renewal, and a provision for renewal from term to term by the mere act of payment of premiums in advance; so that on December 31, 1923, the policy, perforce annual renewals, was still in force, and was for the sum of $7,500. On December 31, 1923, insured was last seen alive. Around 2 o'clock in the afternoon of that day the last of his employees left his place of business, leaving him alone on the premises. It was his custom to close the place himself at each day's end of business. This he seemingly did at 2:17 in the afternoon.

He boarded with the plaintiff, who is the sole legatee under his will. Failing to come home on either Sunday or Monday, December 31, plaintiff became apprehensive about him and endeavored through her attorney to have him located. On this Sunday he had called on another woman friend at her apartment, where he remained some hours at least. While there he was extremely dejected and melancholy; said he was being hounded by a woman, and was going to kill himself. He tried to find a revolver, belonging to this woman, but, failing, he was reminded by her that he had a revolver of his own, and, moreover, she begged him not to kill himself in her rooms, lest she be subjected to trouble and unwarranted suspicion. In all this he acquiesced, and left, averring his intention to kill himself. Efforts to reach him by telephone at his office on Monday afternoon failed, and were met by the "busy" signal. Later it was found that the receiver was off the hook, which rationally accounts for the busy signal.

On Tuesday morning, about 9 o'clock, the police, who had been informed of the disappearance of insured by the attorney of the plaintiff, whose attention, as said, had on the day before been drawn to the matter by plaintiff, came to the place of business of insured, and, opening the door with a skeleton key owned by one of the officers and entering, found insured sitting in a chair, with his feet extended, and a bullet hole through his head, dead. His hands were lying in his lap. Clutched in the right hand was a revolver, one chamber of which had been discharged. The other chambers were still loaded. This revolver was a 32-caliber Smith & Wesson blue steel weapon of the same size and sort as that known to have been owned by insured. His forefinger was still in the trigger guard, and was pressing on the trigger so hard that the weapon stood half-cocked.

His clothing was in no wise disarranged. No evidence of a struggle appeared. None of his effects had been taken from his person, and no property had been taken from the office. The bullet which killed him, after passing through his head, was found in such position as indicated he was seated in the chair when he was shot. There were powder burns on his head, where the bullet entered. One or two witnesses for the plaintiff did not see them, because they did not look for them. There is positive evidence of their presence, and only negative evidence of their absence. Every door and window were found undisturbed and locked on the inside. Each of these openings into the place was connected with a burglar-alarm system in such wise that, upon the opening of either a door or a window, an alarm would ring in the central office. No such alarm was rung from the time the door registered "closed" at 2:17 in the afternoon of Monday, December 31, till the door registered "opened" by the police at 9 o'clock of Tuesday, January 1, 1924, when insured was discovered dead.

Obviously, then, insured shot and killed himself. The situation conclusively negatives every other theory. Did he shoot himself intentionally or accidentally? We think the uncontradicted facts answer this question and absolutely destroy the presumption and rebut the evidence against suicide. These facts are that he had only shortly before been greatly dejected, because a woman was hounding him, and had said he was going to kill himself. The lethal means held by him in mind and intention was a revolver. The circumstances negative the fact that he was, when he shot himself, either loading or cleaning the revolver, or that he was defending himself, or that he had any occasion to do so. The range of the bullet shows that he had held the pistol practically at right angles to his head, and thus shot himself in the right temple just in front of his right ear. When he pressed the trigger the pistol was fully loaded; so the empty weapon theory is inapplicable.

In the light of these facts, the conclusion of suicide is inevitable as a matter of law. But it is insisted by plaintiff (a) that, perforce a Missouri statute (section 6150, R. S. Mo. 1919), the contention that insured committed suicide cannot be made; (b) that, even if this contention is not well taken, the court nisi erred in refusing to charge the jury that the presumption of law is against suicide; (c) that the court erred in refusing to charge the jury, in effect, that, before the fact of suicide of insured would preclude recovery, there must have existed, when the policy was issued, a contemplation of suicide in the mind of insured; and (d) that the court erred in admitting the certificate of the state bureau of vital statistics as to the cause of the death of insured, notwithstanding the provisions of a state statute, which make such a certificate competent evidence. Section 5816, R. S. Mo. 1919.

Taking the shortest and least involved of these contentions first: It is well-settled that under the so-called Conformity Act of Congress of September 24, 1789, c. 20, ß 34 (section 721, R. S. Comp. St. ß 1538) the competency of evidence in a civil case is determinable by the law of the state wherein the trial is had. Parker v. Moore (C. C.) 111 F. 470; Wright v. Bales, 2 Black, 535, 17 L. Ed. 264. So much being settled, the case of Griffith v. Continental Casualty Co., 253 S. W. 1043, 299 Mo. 426, wherein the identical point was ruled, settles the point against the plaintiff's contention.

Touching the contention of plaintiff that it was here and always is the duty of the court to charge the jury that a presumption of law existed against the fact of suicide, it is enough to say of the contention that this is sometimes true and sometimes not true. New York Life Ins. Co. v. Bradshaw (C. C. A.) 2 F.(2d) 451; New York Life Ins. Co. v. Weaver (C. C. A.) 8 F.(2d) 680; Brunswick v. Insurance Co., 213 S. W. 45, 278 Mo. 173, 7 A. L. R. 1213. In this particular case, since there was evidence, from what the insured said as to his intent to kill himself, and from the circumstances, evidence that he had killed himself, the presumption against suicide as a matter of law disappeared from the case. There was no longer any reason to invoke any presumption of law about the matter. Griffith v. Con. Cas. Co., supra; New York Life Ins. Co. v. Weaver, supra; Brunswick v. Insurance Co., supra; Mockowik v. Kansas City, St. J. & C. B. R. Co., 94 S. W. 256, 196 Mo. 571.

The true doctrine, as still held by the Supreme Court of Missouri, is found in the Brunswick Case, supra, which was reversed, however, because the court nisi charged the jury that no such presumption existed. This was error in that case, but only because defendant insurance company had therein offered no evidence whatever, and the evidence offered by the plaintiff was, in view of the rule theretofore announced in Reynolds v. Casualty Co., 201 S. W. 1128, 274 Mo. 831, just as consistent with accident as it was with suicide. The contention of plaintiff in the last analysis is that she may deduce, from the facts and circumstances shown in proof, a presumption against death by suicide, and thereafter, regardless of the state of the proof of suicide, she may again add such presumption to her side of the case. This is not the law. Brunswick v. Insurance Co., supra; Griffith v. Casualty Co., supra; State v. Swearengen, 190 S. W. 268, 269 Mo. loc. cit. 189; Mockowik v. Railway, 94 S. W. 256, 196 Mo. loc. cit. 571. For obviously, if it were the law, every case of alleged suicide would have to go to a jury. Never again could it be possible to say as a matter of law that suicide appears from the facts shown, to a certainty which makes it the duty of the trial judge so to charge. Further, if this contention were the law, no case heretofore could ever have been taken from the jury, on the ground that the uncontradicted evidence showed suicide conclusively, for the very simple reason that the presumption itself would carry the case to the...