Missouri State Life Ins. Co. v. West

• Decision Date: 11 November 1933
• Docket Number: No. 898.,898.
• Parties: MISSOURI STATE LIFE INS. CO. v. WEST et al.
• Court: U.S. Court of Appeals — Tenth Circuit

67 F.2d 468 (1933)

MISSOURI STATE LIFE INS. CO. v. WEST et al.

No. 898.

Circuit Court of Appeals, Tenth Circuit.

November 11, 1933.

Frank Settle and M. C. Rodolf, both of Tulsa, Okl. (Hulette F. Aby and William F. Tucker, both of Tulsa, Okl., on the brief), for appellant.

G. C. Spillers, of Tulsa, Okl. (Charles L. Yancey, Donald L. Brown, F. C. Swindell, and C. R. Nixon, all of Tulsa, Okl., and Roy H. Wasson and E. L. Foulke, both of Wichita, Kan., on the brief), for appellees.

Before McDERMOTT and BRATTON, Circuit Judges, and SYMES, District Judge.

McDERMOTT, Circuit Judge.

A jury, properly charged, found that Clarence Dent was accidentally killed, and a judgment accordingly was rendered on an accident insurance policy. The company's chief contention is that the circumstances exclude every rational hypothesis except that of suicide, and that the trial court erred in refusing to direct a verdict for the company. There is no dispute as to the law. The burden is upon plaintiff to establish that death resulted from injuries effected through accidental means. When the proof establishes such a death, without more, the rational inference or presumption is that it was not suicidal. But where the circumstances are such that reasonable men may differ as to whether the death was suicidal, then the case is for the jury. Where the proof is so convincing that but one rational conclusion may be drawn, then the court should direct a verdict. Among other cases, see Travelers' Ins. Co. v. Bancroft (C. C. A. 10) 65 F.(2d) 963, certiorari denied 54 S. Ct. 103, 78 L. Ed. ___; Love v. New York Life Ins. Co. (C. C. A. 5) 64 F. (2d) 829; Frankel v. New York Life Ins. Co. (C. C. A. 10) 51 F.(2d) 933; New York Life Ins. Co. v. Brown (C. C. A. 5) 39 F.(2d) 376; Prudential Ins. Co. v. Baciocco (C. C. A. 9) 29 F.(2d) 966; Mutual Life Ins. Co. v. Graves (C. C. A. 3) 25 F.(2d) 705; International Life Ins. Co. v. Carroll (C. C. A. 6) 17 F.(2d) 42, 50 A. L. R. 362; Tabor v. Mutual Life Ins. Co. (C. C. A. 4) 13 F.(2d) 765; Pythias Knights' Supreme Lodge v. Beck, 181 U. S. 49, 21 S. Ct. 532, 45 L. Ed. 741; Home Benefit Association v. Sargent, 142 U. S. 691, 12 S. Ct. 332, 35 L. Ed. 1160. No useful purpose will be subserved by an analysis of the facts in these cases; they may be read. While the rule stated is the same, the facts in no two cases are alike.

Mr. Dent's body, lying on its back, was found in the sitting room of his apartment about seven o'clock in the morning of a cold day in February. The window and door to the apartment were open. There was a bullet hole through Dent's body, and he had been dead for some time. He was clothed in underwear, pajamas and bathrobe. He had returned to his apartment about eleven o'clock the night before, in apparent good health and spirits, but his bed had not been slept in. There was a shortage in his business accounts, disclosed after his death, but Dent knew prior to his death that an audit was to be made. There was also evidence that attempts had been made to break into the apartment.

A Savage automatic pistol was lying to the left of his body and an empty shell to the right. The pistol ejects to the right. There was a dispute in the evidence as to whether the pistol belonged to Dent. What one witness thought to be powder burns were found on the front of the pajamas, but not on the bathrobe which was over the pajamas.

Appellant does not contend that Dent shot himself in the back. Its case is founded on the theory that he shot himself in the breast. To account for the location of the empty shell and the pistol, it is necessary that it argue either that Dent stood on his head when he shot himself, or held the pistol upside down. It takes the latter alternative and contends, with apparent seriousness, not only that the jury might, but must, adopt the following weird theory of the accident. We quote from appellant's brief:

"Obviously it became too much for him and finally, toward early morning, he summoned up the courage to take up the automatic pistol, walked to the front door, unlocked it, opened it, turned off the lights, held the automatic pistol upside down in his left hand under and muffled by his heavy bathrobe and, probably with the thumb of his right hand, pulled the trigger and discharged the bullet into his left breast."

If the argument were made that such explanation of the physical facts...