Gamer v. New York Life Ins. Co., 7392.

• Decision Date: 05 April 1935
• Docket Number: No. 7392.,7392.
• Citation: 76 F.2d 543
• Parties: GAMER v. NEW YORK LIFE INS. CO. SAME v. PRUDENTIAL INS. CO. OF AMERICA.
• Court: U.S. Court of Appeals — Ninth Circuit

76 F.2d 543 (1935)

GAMER v. NEW YORK LIFE INS. CO.

SAME v. PRUDENTIAL INS. CO. OF AMERICA.

No. 7392.

Circuit Court of Appeals, Ninth Circuit.

April 5, 1935.

Carl J. Christian and William Meyer, both of Butte, Mont., for appellant.

Kremer, Sanders & Kremer, J. Bruce Kremer, L. P. Sanders, and Alf. C. Kremer, all of Butte, Mont., for appellee Prudential Ins. Co.

W. D. Kyle and Charles R. Leonard, both of Butte, Mont., for appellee New York Life Ins. Co.

Before WILBUR and DENMAN, Circuit Judges.

WILBUR, Circuit Judge.

These actions were brought to recover double indemnity provided by life insurance policies in the event the insured died as result of accident. The insurance companies admitted liability for the face of the policies, but contended that the insured committed suicide. The trial judge instructed the jury to find in favor of the insurance companies upon this issue. The question for our consideration is whether or not the death of the insured can be accounted for upon any reasonable hypothesis other than suicide. Connecticut General Life Ins. Co. v. Maher (C. C. A.) 70 F.(2d) 441, 445.

In determining whether or not the evidence is sufficient to submit the case to the jury, we must assume that the jury will take the view most favorable to the appellant. The evidence as to the means of death is entirely circumstantial. Under the evidence, the jury would have been justified in finding that there was no motive for suicide. The insured was 51 years of age, in robust health, in reasonably good financial circumstances, was living in his own home with his wife and a daughter aged about 14. On the morning of his death, he had assisted his wife in her domestic tasks, and had been in a cheerful frame of mind, laughing and talking with his daughter a few minutes before he went to his room. He had expressed his intention of going fishing, had dressed in his hunting clothes, as was his custom. About half an hour later his body was found in his bedroom, the legs extending into a closet where he kept his shotgun, rifle, and revolver. A rifle was grasped in his left hand, his right hand was at his side; the bridgework in his lower jaw had been thrown forward so that the rear part of the bridgework was projecting from his mouth, his upper denture, a full plate, was lying on the floor just inside the closet; his eye-glasses were lying near it; the back of the head had been entirely blown out, the opening being about three inches in diameter. There was no trace of bullet or powder marks upon the face and no point of entry of the bullet shown upon the body, leading irresistibly to the conclusion that the muzzle of the gun was in the mouth of the deceased at the time the rifle was discharged. A bullet hole was found in the ceiling of the closet, almost immediately over the feet of the body. This bullet hole was of larger diameter than the bullet; some witnesses placing its dimensions as the size of a 25-cent piece.

The closet was long and narrow, 2' 3½" wide and 8' long. Extending lengthwise of the closet was a shelf under which hung a pole which was filled with hangers containing various suits, overcoats, etc. Along the wall were hooks which were hung with clothing and other articles, which, together with the clothes on the pole, completely filled the closet and...