Order of United Commercial Travelers v. Greer

• Decision Date: 04 September 1930
• Docket Number: No. 243.,243.
• Parties: ORDER OF UNITED COMMERCIAL TRAVELERS OF AMERICA v. GREER.
• Court: U.S. Court of Appeals — Tenth Circuit

43 F.2d 499 (1930)

ORDER OF UNITED COMMERCIAL TRAVELERS OF AMERICA v. GREER.

No. 243.

Circuit Court of Appeals, Tenth Circuit.

September 4, 1930.

E. W. Dillon, of Columbus, Ohio (Wilkerson & Brown, of Pryor, Okl., on the brief), for appellant.

John T. Harley, of Tulsa, Okl. (A. C. Brewster, of Pryor, Okl., and Roberts & Clark, of Vinita, Okl., on the brief), for appellee.

Before LEWIS, PHILLIPS, and McDERMOTT, Circuit Judges.

McDERMOTT, Circuit Judge.

The appellee recovered a verdict on an accident policy, and the defendant appeals. The facts will sufficiently appear in connection with the discussion of the errors assigned.

I. At the close of all the evidence the defendant moved for an instructed verdict on the ground of insufficiency of the evidence. The insurance certificate bound the defendant to pay in event of death resulting from bodily injury effected through accidental means; the certificate, however, sets forth a great variety of circumstances under which the company will not pay in case of accidental death. One such is "murder or disappearance, injuries (fatal or otherwise) intentionally inflicted by others (except where such injuries are inflicted for the sole purpose of burglary or robbery or by an insane person, the intent to commit burglary or robbery to be established by the claimant * * *)." The evidence showed that the insured was killed by blows on the head, while he was lying in bed; there was a small hole, apparently cut by a knife, in the screen door opening into the house; the insured habitually carried a considerable sum of money on his person, and ordinarily a considerable sum of money was kept in the house; the billfold of the deceased was rifled and found on a highboy in the room, and there was blood on the highboy. The defendant argues, with apparent seriousness, that these circumstances are not sufficient to justify the jury in finding that the murder was for the sole purpose of burglary or robbery. The insurance certificate does not require that the burglary or robbery be established by an eyewitness. There was ample evidence to submit to the jury the question of whether burglary or robbery was the sole motive of the murder.

II. Defendant claims that the certificate is voidable because of a misstatement of fact by the insured in his application, to-wit, that he did not use alcoholic liquors. The application bears this notation: "Date 11/8/13." The certificate was issued on February 14, 1914. The application states that the insured resides in Sioux Falls, S. D.; that his beneficiary is Anita Greer, his wife. The defendant introduced at the trial the deposition of one Murray, who testified that he first met the insured in March, 1913, in Minneapolis, at which time he hired the insured to work for him in Minneapolis; that he "worked in Minneapolis for about a year from March, 1913, during which time I saw him nearly every day. Mr. Greer was not married at that time, but was married about a year thereafter"; that Greer was a moderate drinker, with occasional excess. It is apparent that Mr. Murray's statement is incorrect as to the dates. He testified that Greer worked for him in Minneapolis about a year from March, 1913, and his testimony was concerning his knowledge of him in Minneapolis. But it is clear that the insured was married in January, 1914, and that he lived in Sioux Falls at that time. In any event, the evidence of Mrs. Greer was sufficient to carry to the jury the question of whether the deceased used intoxicating liquors at the time the certificate was applied for.

III. The third and principal assignment of error is leveled at the court's charge to the jury. The certificate exempts the defendant from liability if, at the time of the injury, the insured was "under the influence of liquor or narcotics in any degree." The application, which is made a part of the policy, provides: "Do you understand that a certificate of membership, if issued to you, will not cover any injury, loss, disability or death, which may happen while under the influence of or in consequence of having been under the influence of any intoxicating drink or narcotic, or either or any of them? Yes."

One of the defenses interposed was that the insured was under the influence of liquor at the time of his death. To support this defense, the defendant introduced in evidence the testimony of the plaintiff given during the trial of another case. Plaintiff contends that this evidence was offered for the purpose of impeaching her testimony in chief to the effect that the insured was not intoxicated when he was killed; and that such impeaching evidence is not substantive evidence. But the plaintiff was a party to the action, and statements of parties are in themselves independent and substantive evidence against such party. Jones on Evidence, §§ 2412, 2414. Plaintiff's admissions were to the effect that the insured had been drinking for about a week prior to his death; that the day before his death she had gotten a quart of whisky for him; that he and another party already had one quart, but that would not be enough to last him over the week-end; that a quart of whisky would last him about a day; that she had told people that he was sick at his cottage, because she did not want them to know about his drinking. The question, of course, is whether he was under the influence of liquor at the time of his death, and not whether he might have been. This defense must be supported by proof, and the jury will not be permitted to speculate or guess about it. In Atchison, Topeka & Santa Fe Ry. Co. v. Toops, 281 U. S. 351, 50 S. Ct. 281, 282, 74 L. Ed. 896, it appeared that an accident might have resulted from the negligence of the defendant or from other causes. The court held that in this state of the record "the jury may not be permitted to speculate as to its cause, and the case must be withdrawn from its consideration, unless there is evidence from which the inference may reasonably be drawn that the injury suffered was caused by the negligent act of the employer. Patton v. Texas & P. Ry. Co., 179 U. S. 658, 21 S. Ct. 275, 45 L. Ed. 361; New Orleans & N. E. R. Co. v. Harris, 247 U. S. 367, 371, 38 S. Ct. 535, 62 L. Ed. 1167; St. Louis-San Francisco Ry. Co. v. Mills, 271 U. S. 344, 347, 46 S. Ct. 520, 70 L. Ed. 979; C., M. & St. P. Ry. v. Coogan, 271 U. S. 472, 46 S. Ct. 564, 70 L. Ed. 1041; New York Central Railroad Co. v. Ambrose, 280 U. S. 486, 50 S. Ct. 198, 74 L. Ed. 562."

However, it is our opinion that the jury might reasonably have found from the evidence, without speculation, that the insured was under the influence of liquor at the time of his injury.

Upon this issue the court charged as follows: "You are further instructed that if you find from a fair preponderance of the evidence that the deceased was in any degree under the influence...