Parfet v. Kansas City Life Ins. Co., 2395.

• Decision Date: 19 May 1942
• Docket Number: No. 2395.,2395.
• Citation: 128 F.2d 361
• Parties: PARFET v. KANSAS CITY LIFE INS. CO.
• Court: U.S. Court of Appeals — Tenth Circuit

128 F.2d 361 (1942)

PARFET v. KANSAS CITY LIFE INS. CO.

No. 2395.

Circuit Court of Appeals, Tenth Circuit.

May 19, 1942.

A. D. Quaintance and E. B. Evans, both of Denver, Colo., for appellant.

Grant, Shafroth & Toll, Morrison Shafroth, and Douglas McHendrie, all of Denver, Colo., for appellee.

Before PHILLIPS, BRATTON, and HUXMAN, Circuit Judges.

BRATTON, Circuit Judge.

A policy of insurance issued by Kansas City Life Insurance Company on the life of George W. Parfet contained a double indemnity provision in the event of death by accidental means but expressly excluded therefrom death by self-destruction, while sane or insane; the insured died of injuries caused by an explosion of dynamite; the face of the policy was paid; this suit was to recover on the double indemnity provision; the court submitted to the jury the question whether death was accidental or suicidal; a verdict was returned for the company; judgment was entered accordingly; and plaintiff appealed.

After the case had been finally submitted to the jury, and while the jury were engaged in their deliberations, they handed to the bailiff a note to the judge in which inquiry was made as to whether it was necessary that a motive be shown by the evidence in order to warrant the jury in finding that the death was by suicide. The bailiff handed the note to a deputy United States Marshal; he took it to the residence of the judge and there handed it to him; the judge directed the deputy to answer verbally "no"; and that was accordingly done. The parties and their attorneys were not present, were not consulted, and did not consent to such communication between the court and the jury. The matter to which the inquiry related had been covered in the instructions of the court, and it may be conceded that the answer was a correct statement of the law. But where a case has been submitted to the jury and in the course of their deliberations the jury request additional instructions, such instructions should be given in the presence of the parties or their attorneys, or after notice and opportunity to be present. It is error for the court to receive a communication of this kind from the jury and make reply thereto in the form of an additional instruction in the absence of the parties or their attorneys, or without notice and an opportunity to be present, even though substantial prejudice is not affirmatively shown. Fillippon v. Albion Vein Slate Company, 250 U.S. 76, 39 S.Ct. 435, 63 L.Ed. 853; Hopkins v. Bishop, 91 Mich. 328, 51 N.W. 902, 30 Am.St.Rep. 480; Mound City v. Mason, 262 Ill. 392, 104 N.E. 685; Lewis v. Lewis, 220 Mass. 364, 107 N. E. 970, L.R.A.1915D, 719, Ann.Cas.1917A, 395; Hrovat v. Cleveland R. Co., 125 Ohio St. 67, 180 N.E. 549, 84 A.L.R. 215. Compare, Shields v. United States, 273 U.S. 583, 47 S.Ct. 478, 71 L.Ed. 787; Fina v. United States, 10 Cir., 46 F.2d 643; Little v. United States, 10 Cir., 73 F.2d 861.

The company contends however that the evidence conclusively established suicide, and that therefore it affirmatively appears from the record that any error in the additional instruction or the manner in which it was given was harmless as no other verdict was possible under the evidence. There is no need to detail the evidence at length. It may be said in resume that there was no eye witness to the explosion, that some circumstances and certain statements made by the insured immediately after it occurred point strongly to suicide but that other circumstances indicate persuasively that it was an accident, and that no motive for suicide was shown. In Colorado, death by unexplained violence is presumed to have been accidental, and evidence establishing death by violence without explanation as to the manner in which the violence was inflicted constitutes prima facie proof that the death was accidental, Occidental Life Ins. Co. v. United States Nat. Bank of Denver, Colo., 98 Colo. 126, 53 P. 2d 1180; and, if under the evidence death by violence can be explained on any reasonable hypothesis other than suicide, it is the duty of the court or the jury to so find, Prudential Ins. Co. of America v. Cline, 98 Colo. 275, 57 P.2d 1205. Taken as a whole and fairly construed, the evidence did not conclusively establish suicide. Instead, it presented an issue for the jury. It follows that the communication passing between the court and the jury, in the absence of the...