Jefferson Standard Life Ins. Co. v. Clemmer, 3804.

• Decision Date: 24 October 1935
• Docket Number: No. 3804.,3804.
• Citation: Jefferson Standard Life Ins. Co. v. Clemmer, 79 F.2d 724, 103 A.L.R. 171 (4th Cir. 1935)
• Parties: JEFFERSON STANDARD LIFE INS. CO. v. CLEMMER.
• Court: U.S. Court of Appeals — Fourth Circuit

79 F.2d 724 (1935)

JEFFERSON STANDARD LIFE INS. CO. v. CLEMMER.

No. 3804.

Circuit Court of Appeals, Fourth Circuit.

October 24, 1935.

Julius C. Smith, of Greensboro, N. C., and Laird L. Conrad, of Harrisonburg, Va. (C. R. Wharton, of Greensboro, N. C., Charles Curry, of Staunton, Va., and Smith, Wharton & Hudgins, of Greensboro, N. C., on the brief), for appellant.

S. D. Timberlake, Jr., of Staunton, Va. (Timberlake & Nelson and J. Wesley Taylor, all of Staunton, Va., on the brief), for appellee.

Before PARKER, and SOPER, Circuit Judges, and GLENN, District Judge.

SOPER, Circuit Judge.

This appeal is taken from a judgment of $20,000 rendered against the Jefferson Standard Life Insurance Company, defendant in the District Court, at the suit of the administrator of Harry Clemmer, deceased. A policy of insurance, in the sum of $10,000 was issued to Clemmer on June 6, 1932, with a double indemnity clause attached, providing for the payment of an additional $10,000 if death should occur to the insured directly and independently of all other causes from bodily injury, effected solely through external, violent, and accidental means; but this provision did not apply in case death should result from bodily injury inflicted by the insured, or intentionally by another person, or from self-destruction. On July 28, 1932, the insured was found in a locked bedroom, dead from a pistol wound in his forehead; the weapon lying in a pool of blood at his feet. The policy contained the general provision that in case of self-destruction, committed whether sane or insane, within one year from its date, the extent of recovery should be the premiums paid. The company having declined to pay a claim for $20,000 presented by the administrator under the policy, the administrator brought suit for that amount, relying on the double indemnity clause. The company paid the premiums received into court, and defended the suit on the grounds, inter alia: (1) That the death was suicidal; and (2) that the insured had made false representations in his application for the policy, with respect to prior illnesses and medical and surgical attention received by him during the preceding five years.

At the trial, upon the conclusion of all the evidence, the defendant moved for a directed verdict in its favor, but this motion was denied and the issues were submitted to the jury. We are of opinion that it was error to refuse the prayer for a directed verdict, for the undisputed evidence tending to show suicide was clear and convincing, and left no other reasonable explanation of Clemmer's death. He would have been 30 years of age in September following his death. He was the son of well-to-do parents, and had been educated both in the academic and legal departments of Washington and Lee University, finishing in 1927. He had, however, never engaged in the practice of law, but, desiring to go into the hotel business, had accepted employment at the Stonewall Jackson Hotel and at the Stonewall Jackson Golf Club, organizations managed by his brother-in-law at or near Staunton, Va. He was described as a vigorous young man in good health, fond of athletics, and of a happy, buoyant disposition.

At the time of his death, Clemmer was clerk at the hotel, but was temporarily on a vacation. He was found dead in his room with the door locked on the inside, in a building adjacent the hotel, between 8 and 9 p. m., on July 28, 1932. Medical testimony indicated that the death occurred about 1 p. m. An hour before that time, he entered an adjacent room of a fellow employee and requested him to go to the bank for coupons from bonds which the insured had deposited as collateral for a loan. The body was found seated on a side of the bed; the arms or elbows were resting on the things near the knees, and the feet were 18 to 20 inches apart. His head was inclined forward, so that his chin was close to his chest. He was clad in his underclothes. There was a round bullet hole in the center of his forehead on a line with the top of his eyes, about one-fourth of an inch in diameter. The bullet appeared to enter horizontally, but when the wound was probed later, it seemed to go in an upward direction, toward the back, at an angle of 15 to 20 degrees. A revolver was lying on the floor in a pool of blood, and under it there was a clear space showing that it had been dropped before the blood flowed. It was lying on the floor directly under the bullet wound in the head, and directly beneath the hands of the deceased.

Dr. Parkins, a witness on behalf of the plaintiff, testified that there was a dark discoloration around the wound of about an eighth of an inch in breadth, which, at the time, he took to be powder marks. On August 26, 1932, a month later, he signed and swore to a statement wherein he said that the wound, including the powder bruise, was about one-half an inch in diameter. At the trial, however, he said that it was dark in the room and he was not certain whether the discoloration was caused by powder marks or bruised blood. He wiped off the wound with a piece of cotton. While not knowing much about the difference between marks made by black powder and smokeless powder, he thought that marks made by the latter are not nearly so distinct and are more easily removed. The undertaker did not notice powder marks, but saw the discoloration around the wound.

Experts testified as to the nature of wounds made by weapons discharged close to the head, using black or smokeless powder. This evidence tended to show that the wound from a weapon held against the head is large and ragged, and burned from the powder and from the flash of the gasses. If black powder is used, powder burns are found when the weapon has been discharged within three inches or less of the skin. Smokeless powder within three inches leaves a smudge that can be wiped off. The reasonable inference from this testimony was that the pistol in this case was not discharged in contact with the forehead of the deceased, but from a short distance away.

The weapon was a 32.20 calibre Colt revolver, with a 4-inch barrel. It was fully loaded with smokeless cartridges, when found, except as to one exploded shell. A new box of cartridges was found on the dresser, and two or three cartridges were lying loose. The deceased had bought the box at a hardware store in Staunton three or four days before his death.

A pint bottle, one-half full of whisky, was found on the dresser, and some seven or eight similar empty bottles in a drawer of the dresser. There was much evidence that the young man was accustomed to the constant use of bootleg liquor, and, on occasions, was noticeably under its influence. Evidence as to his financial condition, given by his brother, indicated that the deceased had an undivided interest in the estate of his father, consisting in large part of farm lands, which gave him a net worth of about $10,000; but at the time of his death he was in need of ready money. He owed between twelve and thirteen thousand dollars to certain banks and small loan companies. One of these banks had made a call on him to reduce his indebtedness by a cash payment of $500. Signed promissory notes had been left with the bank by the mother of the deceased, so that the indebtedness might be renewed during her absence in Europe; but apparently the bank in question was not willing to renew without a curtailment of the indebtedness. During a period of a few days before his death, the deceased had given two or three $5 checks, one of which had been turned down for lack of funds. Five days before his death, he made an application to a small loan company for a loan of $300, and was granted a loan of $140. This loan was made without security; all of his available collateral being already pledged with the banks. There was evidence that during a short period before his death the deceased was worried and depressed in regard to the condition of a young woman he had gotten in trouble. He spoke to a physician about the matter, and said that he had sent the woman to some place for relief.

Blackwell, a fellow clerk at the hotel, testified that Clemmer on two occasions, within four or five months and three or four weeks, respectively, prior to his death, had made statements indicating that he was contemplating suicide. Blackwell had been employed by the hotel in divers capacities, but was not in its employ at the time of the trial. He was questioned by his employer, the brother-in-law of Clemmer, and by an attorney, when they were seeking information relative to a claim against the insurance company two or three days after the death. He stated at the time that he did not want anything to do with the case, and did not want to tell anything about it one way or the other. The broth-in-law testified that Blackwell also said that he knew nothing about the case.

An attempt was made to discredit the testimony of Blackwell because of these earlier statements. However, the evidence of suicide is sufficient without giving consideration at all to Blackwell's testimony. A similar situation arose in Metropolitan Life Ins. Co. v. Smith (C. C. A.) 65 F.(2d) 967, 968, where the following was said:

"It was further testified that insured was always of a cheerful disposition, that he was engaged to be married, had been with his fiancee the evening before his death, and left her saying he would see her the following day; and that he had made an engagement with one of his attorneys to confer soon after with reference to his trial which had been set for an early date, and that insured had expressed absolute confidence of his acquittal.

"Also there was some contradiction as to whether one of the witnesses who testified to certain conversations with deceased had been impeached by evidence of differing statements; but the conversations which might have tended to establish suicidal intent we dismiss from consideration entirely; and we thus also ignore the...