Mitchell v. New England Mut. Life Ins. Co.

• Decision Date: 10 November 1941
• Docket Number: No. 4768.,4768.
• Citation: 123 F.2d 246
• Parties: MITCHELL v. NEW ENGLAND MUT. LIFE INS. CO.
• Court: U.S. Court of Appeals — Fourth Circuit

123 F.2d 246 (1941)

MITCHELL v. NEW ENGLAND MUT. LIFE INS. CO.

No. 4768.

Circuit Court of Appeals, Fourth Circuit.

November 10, 1941.

W. R. Broaddus, Jr., of Martinsville, Va. (John W. Carter, Jr., of Danville, Va., and William M. Mitchell, of Bassett, Va., on the brief), for appellant.

John L. Walker, of Roanoke, Va. (Woods, Chitwood, Coxe, Rogers & Muse, of Roanoke, Va., on the brief), for appellee.

Before PARKER, SOPER, and DOBIE, Circuit Judges.

PARKER, Circuit Judge.

This action was instituted in the court below for recovery on two life insurance policies aggregating $15,000, with provision for double indemnity in case of accidental death. The defense was based on the suicide of the insured. Judgment on the pleadings for the face of the policies, on the theory that the suicide clause therein contained was void because of failure to comply with the Virginia statute relating to that subject, was reversed by this court in New England Mut. Life Ins. Co. v. Mitchell, 4 Cir. 118 F.2d 414. Subsequent to the entry of that judgment in the court below, and while appeal therefrom was pending, the issue as to the liability of the company under the double indemnity provision of the policies was tried; and from verdict and judgment thereon in favor of defendant the plaintiff has appealed, complaining of the refusal of the lower court to give requested instructions on the presumption against suicide. The defendant contends that this matter was sufficiently covered by the charge and that, at all events, any error with respect thereto was harmless, since the evidence established suicide so conclusively that its motion for directed verdict on that ground should have been granted.

We agree with defendant that the evidence as to suicide is so conclusive as to require a directed verdict on that ground and to render harmless any possible error in the refusal of the instructions prayed. The evidence shows that the insured was financially embarrassed. The corporation through which he was doing business and in which he owned the majority of the stock was hopelessly insolvent, and he had been giving post dated checks without funds in bank to meet them. About a week before his death he made inquiry of an insurance agent as to whether other insurance policies were incontestable, and, upon the agent volunteering that the policies here involved carried a two-year suicide clause, stated that the period thereof had been changed to one year, a period which had expired more than a month before the conversation. Insured spent the night preceding his death away from home, which was an unusual circumstance and was unexplained. On the morning of his death, he called at the home of his mother and borrowed from his younger brother a small 410 bore shotgun with the statement that he wished to go squirrel hunting, although the hunting season had not then opened. Some hours later he was found lying near his abandoned automobile seven miles distant from his mother's home. He was shot through the heart and the gun which he had borrowed was lying beside him with an empty shell in it. There is no contention and no ground for contention that anyone else shot him; and the nature of the wound itself bars any reasonable hypothesis of accident. The load of shot which caused his death entered the chest midway between the left nipple and the breast bone. It made a small hole like that of a rifle bullet with a narrow powder burn or ring around it, and with no hole through or powder burns on his coat, shirt or undershirt, showing that the muzzle of the gun must have been pressed against the naked skin of his breast at the time. The bullet went straight in, showing that the gun must have been held at right angles to his breast. The barrel of the gun was short and the evidence shows that insured could easily have held the muzzle against his breast and shot himself by pulling the trigger; and, from the nature of the wound, it is inconceivable that it could have been inflicted in any other way.

Plaintiff's theory that the gun went off accidentally while insured was hunting squirrels has nothing to support it. Insured was found within 75 yards of where he had left his automobile. He had made no preparation for hunting, did not have on hunting clothes and had only three shells including the one that was shot. The gun had a trigger guard and a more than ordinarily heavy trigger pull, and it was practically impossible to fire it without pulling the trigger, except by a blow of sufficient force to break the firing mechanism. This mechanism was not broken and there was nothing to indicate that the trigger could have been pulled except by the insured himself. Furthermore, no possible theory of accidental discharge could account for the position of the muzzle of the gun against the naked skin, with the clothing pulled aside and the gun itself held at such an angle as to fire the load straight into the heart. The evidence that insured frequently went with his tie off and his shirt unbuttoned at the neck was not sufficient to account even for the fact that the clothing was not penetrated. The shirt and undershirt were manifestly pulled aside to permit the proper placing of the gun; for, when the body of insured was found, these had to be pulled aside for the wound to be discovered.

Under such circumstances reasonable men could have reached no other conclusion than that insured shot himself intentionally; and defendant was entitled to a directed verdict to that effect. Jefferson Standard Life Ins. Co. v. Clemmer, 4 Cir. 79 F.2d 724, 103 A.L.R. 171; Home Life Ins. Co. v. Moon, 4 Cir. 110 F.2d 184; Mutual Ins. Co. of Richmond v. Marshall, 157 Va. 427, 161 S.E. 61; Gorham v. Mutual Benefit Health & Accident Association, 4 Cir. 114 F.2d 97, 100. As we said in the case last cited: "A suicide case should be tried like any other case, and metaphysical reasoning about presumptions and burden of proof should not be permitted to obscure the real issue, as has been done in so many cases. If the evidence is conflicting, or if different inferences can reasonably be drawn from it, the case is for the jury. If, however, the evidence is so clear as to leave no room to doubt what the fact is, the question is one of law, and it is the right and duty of the judge to direct a verdict."

And we do not think that error can...