Missouri State Life Ins. Co. v. Makiver

• Decision Date: 05 March 1925
• Docket Number: No. 3193.,3193.
• Parties: MISSOURI STATE LIFE INS. CO. v. MAKIVER. EQUITABLE LIFE ASSUR. SOC. OF UNITED STATES v. SAME.
• Court: U.S. Court of Appeals — Third Circuit

4 F.2d 185 (1925)

MISSOURI STATE LIFE INS. CO. v. MAKIVER.

EQUITABLE LIFE ASSUR. SOC. OF UNITED STATES v. SAME.

No. 3193.

Circuit Court of Appeals, Third Circuit.

March 5, 1925.

Robert J. Sterrett, of Philadelphia, Pa. (Alexander & Green, of New York City, and Jourdan & English, of St. Louis, Mo., of counsel), for plaintiffs in error.

John B. Hannum, Jr., of Chester, Pa., W. Roger Fronefield, of Media, Pa., William S. Connor, of St. Louis, Mo., and John R. K. Scott, of Philadelphia, Pa., for defendant in error.

Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.

DAVIS, Circuit Judge.

Oscar W. R. Rosier was shot on January 21, 1922, by his wife, Kathryn Rosier, and died shortly thereafter. One of the defendants below, the Missouri State Life Insurance Company, issued three policies of insurance on the life of the deceased, and the other defendant, the Equitable Life Assurance Society of the United States, issued one policy on his life. One policy, for $7,500, was for accidental death. The other three were ordinary life insurance policies, each for $10,000, and contained a double indemnity provision for accidental death as follows:

"If death results independently and exclusively of all other causes from bodily injuries effected directly from external, violent and accidental means, within 90 days from the happening of such injuries, of which, other than in the case of drowning, there shall be visible contusion or wound on the exterior of the body, except that this double indemnity will not be payable if the insured's death shall result from suicide, whether sane or insane, or any attempt thereat, sane or insane, or directly or indirectly, wholly or in part, from poisoning, infection, or any kind of illness or disease, or from any violation of law by the insured."

There were four suits, three against the Missouri State Life Insurance Company and one against the Equitable Life Assurance Society of the United States. All four suits were combined, tried and argued together, and will be disposed of in this opinion, for the facts and the question of law are practically the same in all four cases. Ten thousand dollars in each of the three life policies was paid, but the payment of the policy for accidental death and of the double indemnity in the other three is resisted on the ground that the insured's death resulted from the violation of law by him, in that he was shot by his wife while in the act of committing adultery. This is the sole ground of defense. It is based upon the statement of Mrs. Rosier made to newspaper reporters some time after the shooting. In reply to the question of why she shot him, she said: "When I was in the Hahnemann Hospital having my baby they were running around together. To-day I came in and caught them right in the act." This was admitted over objection under the rule of res gestæ and was the only evidence tending to show that the insured's death resulted from the violation of law. The learned trial judge gave binding instructions in each case for the plaintiff, on the ground that the above statement did not show that the deceased died from the violation of law.

A motion for a new trial was argued before Judges Thompson, Dickinson, and McKeehan, sitting in banc, and after consideration they concluded that the statement of Mrs. Rosier was not admissible under the rule of res gestæ. Accordingly they held that binding instructions were proper, not on the ground, however, that the evidence of adultery was not sufficient to submit to the jury, but on the ground that the statement of Mrs. Rosier was erroneously admitted, and so there was no evidence on which to base the defense. Consequently the rule for a new trial was dismissed.

The real question to be determined is whether or not there was any evidence which should have been submitted to the jury from which it could...