New York Life Ins. Co. v. Gamer, 8124.

• Decision Date: 28 June 1937
• Docket Number: No. 8124.,8124.
• Citation: 90 F.2d 817
• Parties: NEW YORK LIFE INS. CO. v. GAMER.
• Court: U.S. Court of Appeals — Ninth Circuit

90 F.2d 817 (1937)

NEW YORK LIFE INS. CO. v. GAMER.

No. 8124.

Circuit Court of Appeals, Ninth Circuit.

June 28, 1937.

Charles R. Leonard, W. D. Kyle, and J. A. Poore, all of Butte, Mont., for appellant.

Carl J. Christian and William Meyer, both of Butte, Mont., for appellee.

Before WILBUR, GARRECHT, and DENMAN, Circuit Judges.

DENMAN, Circuit Judge.

This is the second appeal in this case.

The facts proved are not in their essence different from those presented to us on the former appeal. Gamer v. New York Life Ins. Co., 76 F.(2d) 543.

The appellant states its first contention on this appeal as follows:

"The only question of ultimate fact to be determined in this case is: Was the death of Edward Walter Gamer due to accident or suicide?

"Plaintiff alleges that his death resulted directly and independently of all other causes from bodily injury effected solely through external, violent and accidental means, and did not result from self-destruction, but from the accidental discharge of a rifle. The answer denies that death resulted directly or indirectly from the accidental discharge of the rifle, and alleges he took his own life."

Appellant describes what it "alleges" concerning suicide as an "affirmative defense." The policy insured against death in the sum of $10,000, and provided for the payment of a double indemnity in the event of death by accident, but that "Double Indemnity shall not be payable if the Insured's death resulted from self-destruction, whether sane or insane." (Italics supplied.)

Liability for $10,000 was admitted and that amount was tendered. The appeal concerns the verdict for $20,000; that is, for the second $10,000 of the double indemnity.

Evidence was introduced from which the jury could infer that the special defense of suicide had been established. The District Judge, following the language of the instructions approved in Travellers' Ins. Co. v. McConkey, 127 U.S. 661, 8 S.Ct. 1360, 32 L.Ed. 308, instructed the jury as follows:

"Ordinarily, gentlemen of the jury, in the absence of a plea by the defendant of suicide or self-destruction, the burden would be upon, and it still is upon the plaintiff in this case to prove that Walter Gamer died from external, violent and accidental means, but by its answer in this case the New York Life Insurance Company has admitted that Walter Gamer died through external and violent means. So that question is out.

"The question remains as to whether the death was accidentally caused, or the means of death was accidental, or whether it was suicide. But when the defendant took the position that it takes here, it assumed the burden of proving to you by a preponderance of the evidence that Walter Gamer killed himself voluntarily. * * *" (Italics supplied.)

And again: "In this case, the defendant alleges that the death of E. Walter Gamer was caused by suicide. The burden of proving this allegation by a preponderance or greater weight, of the evidence is upon the defendant. The presumption of law is that the death was not voluntary, and the defendant in order to sustain the issue of suicide on the part of E. Walter Gamer must overcome this presumption and satisfy the jury by a preponderance of the evidence that his death was voluntary."

The appellant insurance company assigns and asserts error in that portion of the instruction which states that the burden is on the defendant insurer to prove by a preponderance of the evidence that Walter Gamer killed himself voluntarily, asserting the law to be that the burden of proof of suicide is not upon the insurer where it has raised the issue of suicide, but is on the plaintiff to show death by another accidental cause.

The situation in this case is the same as that in the case of Travellers' Ins. Co. v. McConkey, 127 U.S. 661, 664, 666, 667, 8 S.Ct. 1360, 32 L.Ed. 308, where the Supreme Court considered the question whether such an instruction was error; the policy clause in that case being identical to the one here. In that case the death of the insured by gunshot was under such circumstances as to allow inferences either of suicide or accident. In that case, as in this, there was a general denial that the death of the insured was occasioned by bodily injuries effected through external, violent, and accidental means, and the insurer pleaded specially that the decedent's death was caused by suicide.

The instruction to the jury which the Supreme Court held not error was:

"The defendant, in its answer, alleges that the death of the insured was caused by suicide.

"`The burden of proving this allegation by a preponderance of evidence rests on the defendant. The presumption is that the death was not voluntary; and the defendant, in order to sustain the issue of suicide on his part, must overcome this presumption, and satisfy the jury that the death was voluntary.' * * *

"`The burden of proof is upon the plaintiff to establish, by a preponderance of credible testimony, that the deceased came to his death from injuries or an injury effected through external, violent, and accidental means, within the intent and meaning of the contract and conditions expressed in the policy.' * * *

"`It does clearly appear from the evidence that the insured came to his death from injuries or an injury effected through violent and external means, and * * * the presumption is that the means were unintentional on the part of the insured, which the court holds satisfies the contract. This presumed fact is not conclusive, and may be overcome by evidence, if such there is in the case, that the injuries were voluntary or intentional.'" (Italics supplied.)

Travellers' Ins. Co. v. McConkey, supra, 127 U.S. 661, 664, 665, 8 S.Ct. 1360, 1361, 32 L.Ed. 308.

The Supreme Court considered the two methods of raising the issues in the answer which, in that case, were as in the present one; that is, first, the issue presented by the general denial, and, second, the special issue presented as to suicide. Concerning the first issue it states (127 U.S. 661, at page 666, 8 S.Ct. 1360, 1362, 32 L.Ed. 308): "There is no escape from the conclusion that, under the issue presented by the general denial in the answer, it was incumbent upon the plaintiff to show, from all the evidence, that the death of the insured was the result, not only of external and violent, but of accidental, means."

In holding that the instruction in respect to the second issue as to suicide, i. e., that "the burden of proving this allegation by a preponderance of evidence rests on the defendant," was not error, the court held (127 U.S. 661, at page 667, 8 S.Ct. 1360, 1363, 32 L.Ed. 308): "In respect to the issue as to suicide, the court instructed the jury that self-destruction was not to be presumed. In Mallory v. Travelers' Ins. Co., 47 N.Y. 52 54 7 Am.Rep. 410, which was a suit upon an accident policy, it appeared that the death was caused either by accidental injury or by the suicidal act of the deceased. `But,' the court properly said, `the presumption is against the latter. It is contrary to the general conduct of mankind; it shows gross moral turpitude in a sane person.' Did the court err in saying to the jury that, upon the issue as to suicide, the law was for the plaintiff, unless that presumption was overcome by competent evidence? This question must be answered in the negative. The condition that direct and positive proof must be made of death having been caused by external, violent, and accidental means, did not deprive the plaintiff when making such proof, of the benefit of the rules of law established for the guidance of courts and juries in the investigation and determination of facts." (Italics supplied).

This court has consistently relied upon and held in accord with the McConkey Case. In Prudential Ins. Co. v. Baciocco (C.C.A.) 29 F.(2d) 966, 967: "It is not controverted that death by drowning is a death by external and violent means within the terms of the policy, nor is it questioned that in cases of this character where such a death is shown there is a presumption against the theory of suicide. Metropolitan Life Ins. Co. v. Broyer (C.C. A.) 20 F.(2d) 818. It is also conceded that by reason of this presumption appellant had the burden of proving the contrary, and that where, as here, evidence of selfdestruction is circumstantial, the insurance company must fail `unless the circumstances exclude with reasonable certainty any hypothesis of death by accident, or by the act of another.' Tabor v. Mutual Life Ins. Co. (C.C.A.) 13 F.(2d) 765, 769."

In the Broyer Case, referred to above, citing the McConkey Case, we held: "The presumption is that Broyer did not commit suicide, and we cannot say that the jury erred in concluding that that presumption was not rebutted. Travellers' Ins. Co. v. McConkey, 127 U.S. 661 667, 8 S.Ct. 1360, 32 L.Ed. 308; International Life Ins. Co. v. Carroll (C.C.A.6) 17 F.(2d) 42 50 A.L.R. 362."

Metropolitan Life Ins. Co. v. Broyer (C.C.A.) 20 F.(2d) 818, 820.

The Carroll Case last relied upon above is from the Sixth Circuit, and it holds: "The presumptions of law arising from the fact of death are against self-destruction, for human experience shows that it is rare, even among the unhappy. Travellers' Insurance Co. v. McConkey, 127 U.S. 661, 8 S.Ct. 1360, 32 L.Ed. 308. * * * But certainly the law places upon him who relies upon self-destruction the burden of showing it by a preponderance of the evidence." International Life Ins. Co. v. Carroll (C.C.A.) 17 F.(2d) 42, 43, 50 A.L. R. 362.

The same rule is followed in this circuit in the earlier case of Connecticut Mut. Life Ins. Co. v. McWhirter (C.C.A.9) 73 F. 444, 449, 450.

The insurance company contends that three cases from this circuit, United States Fidelity & Guaranty Co. v. Blum (C.C.A. 9) 270 F. 946; Connecticut Gen. Life Ins. Co. v. Maher (C.C.A.9) 70 F.(2d) 441; and New Amsterdam Casualty Co. v. Breschini (C.C.A.9) 64 F.(2d) 887, have overruled this established...