Mutual Life Ins. Co. of New York v. Gregg

• Decision Date: 07 May 1929
• Docket Number: No. 5174-5176.,5174-5176.
• Citation: 32 F.2d 567
• Parties: MUTUAL LIFE INS. CO. OF NEW YORK, v. GREGG et al. EQUITABLE LIFE ASSUR. SOC. OF THE UNITED STATES v. SAME. SAME v. SHEEHAN.
• Court: U.S. Court of Appeals — Sixth Circuit

32 F.2d 567 (1929)

MUTUAL LIFE INS. CO. OF NEW YORK, v. GREGG et al.

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

SAME v. SHEEHAN.

Nos. 5174-5176.

Circuit Court of Appeals, Sixth Circuit.

May 7, 1929.

F. J. Wright, of Columbus, Ohio, for Insurance Cos.

Frederick L. Allen, of New York City (Arnold, Wright & Harlor, of Columbus, Ohio, on the brief), for Mutual Life Ins. Co.

Alexander & Green, of New York City (Arnold, Wright & Harlor, of Columbus, Ohio, on the brief), for Equitable Life Assur. Soc.

Robert T. Scott, of Cambridge, Ohio (Scott & Scott and James W. Bell, all of Cambridge, Ohio, on the brief), for appellees.

Before DENISON, MOORMAN, and HICKENLOOPER, Circuit Judges.

DENISON, Circuit Judge.

If Gregg, the insured under the life insurance policies sued upon in these three cases (tried together), committed suicide, the policies forbade recovery. Suicide or not was the only issue. The jury found for the plaintiffs. The insurers contend that a verdict should have been directed for them.

The contention depends, first, upon a matter of pleading. The policies provided double indemnity in case of accidental death, and the petitions sought this double recovery. They therefore alleged that the insured was killed by a bullet from his own pistol, held in his own hand and accidentally fired. At the opening of the trial, and perhaps judging that plaintiffs carried the burden to show accident, and therefore must fail, while defendant had the burden of showing suicide, and perhaps might fail, plaintiffs withdrew the claim of accident and for a double liability. There was no formal amendment of the petitions, and at the end of the trial defendant urged that, as the pleadings admitted Gregg died by his own hand, and the plaintiffs disclaimed accident, suicide was the inevitable conclusion. While it is unfortunate that the petitions were not more formally amended so that plaintiffs might avoid this inference, we think counsel's disclaimer of accident should be interpreted as disclaiming and carrying with it the whole of the paragraph in which accident was alleged, and therefore withdrawing the entire allegation that Gregg was killed by his own pistol in his own hand. The literal construction of what was done and what was left undone would amount to a consent by plaintiffs' counsel to adverse judgment, but the more reasonable construction of what they did is as we have stated. The trial court took this view of the matter; and, since amendment of the pleadings was then and there permissible at the discretion of the court, we do not see that there was any reversible error. The situation is appropriate for the application of section 269 of the Judicial Code (U. S. C. tit. 28, § 391 28 USCA § 391).

Defendant's main contention is that suicide was the only legally permissible inference from the undisputed facts. We had occasion in New York Life Ins. Co. v. Ross (C. C. A.) 30 F.(2d) 80, 82, to discuss the effect of the so-called presumption against suicide, and particularly its effect when the initial burden is on plaintiff to show accidental death. Where the issue of accident is not directly involved, but the sole direct issue is suicide or not — upon which issue the insurer carries the burden, both of proceeding with evidence and of satisfying the jury — the insurer must produce evidence reasonably fit to persuade that the death was suicidal; and, having done so, if therein or in plaintiff's proofs there was basis also for the contrary inference, the issue is for the jury; and a reviewing court, under the federal rule, cannot balance the inferences and say that, in its judgment, the inference of suicide is more reasonable, and therefore plaintiff, as a matter of law, must fail.

The question for the reviewing court must be just the same as in any other kind of a lawsuit tried by a jury. Does the evidence, taken in the most favorable light for plaintiff, compel all reasonable men to accept the theory of suicide? If so, a verdict will be directed for defendant; otherwise not; and in this inquiry, as in every other case where the jury may rightfully refuse to accept that theory which is the natural and prima facie correct inference from all the facts, there must be some other theory fairly reconcilable with the admitted facts, and which is reasonably possible rather than merely fantastic. If all the facts indicate suicide, and there is nothing reasonably having a substantial tendency to show that the death might have occurred in any other way, the issue is one of law and not of fact. The cases of Travellers' Ins. Co. v. McConkey, 127 U. S. 661, 8 S. Ct. 1360, 32 L. Ed. 308, in ...