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

• Decision Date: 10 June 1940
• Docket Number: No. 4604.,4604.
• Citation: 112 F.2d 769
• Parties: RAST v. MUTUAL LIFE INS. CO. OF NEW YORK.
• Court: U.S. Court of Appeals — Fourth Circuit

112 F.2d 769 (1940)

RAST v. MUTUAL LIFE INS. CO. OF NEW YORK.

No. 4604.

Circuit Court of Appeals, Fourth Circuit.

June 10, 1940.

Edward W. Mullins, of Columbia, S. C. (Hunter & Harley, of Newberry, S. C., and Nelson, Mullins & Grier, of Columbia, S. C., on the brief), for appellant.

Pinckney L. Cain, of Columbia, S. C. (Louis W. Dawson, of New York City, and Thomas, Cain & Black, of Columbia, S. C., on the brief), for appellee.

Before SOPER, DOBIE, and NORTHCOTT, Circuit Judges.

SOPER, Circuit Judge.

The plaintiff in the District Court, who is appellant here, brought suit against the Insurance Company as the beneficiary under two policies of insurance of $5,000 each on the life of her deceased husband. She seeks to recover the additional sum of $5,000 under a clause in each policy providing for payment of double indemnity "upon receipt of due proof that the insured died as a direct result of bodily injury affected solely through external, violent and accidental means, * * * provided that the double indemnity shall not be payable if death resulted from self destruction, whether sane or insane". The insured died as the result of a gun shot wound, and the company paid the face of the policies but denied liability for double indemnity. The sole question in the case was whether the death was accidental or suicidal, the plaintiff alleging that the defendant had been furnished with due proof of accidental death, and the defendant taking issue on this point and alleging that death resulted from self destruction.

On the day of his death, September 30, 1937, the deceased had busied himself about his home in the town of Swansea, South Carolina, during the morning. After lunch, at about 1.15 P. M., he left his home in apparently good spirits, saying he was going to his farm which was located two and a half miles from town. He took a shot gun with him saying that he would try to get a rabbit. He went to the farm and had some conversation with his tenant, and then about 1.30 P. M. went into the woods for a few minutes for a rabbit, firing one shot unsuccessfully. Returning he arranged for the farmer to get a few stalks of sugar cane for his children and left.

Shortly after 1:30 P. M. he was found about a half mile away, lying on the ground by the side of his automobile which was parked in the yard of an abandoned house on the farm. The spot was in plain view from the public road, and he was discovered by the occupants of a passing automobile who saw his car and heard him call for help. One of them heard a gun shot when their car, as it approached the spot, was about 300 yards away. He was in great pain from a gunshot wound in the upper abdomen and died later in the day. He was lying on the ground at a slight angle to the car with his feet at the center and his head toward the rear of the car. The barrel of the shotgun was protruding about 18 inches from the back door, while the stock of the gun rested on the floor of the car between the front and the back seats. He asked the passers-by to help him, telling them that he had shot himself accidentally while attempting to pull the gun out of the car by the barrel. This statement, however, was not allowed to go to the jury as the court held that it was not part of the res gestae. We shall discuss this ruling later. Suffice it to say now that the evidence shows very clearly that the statement was made by the deceased a few minutes at the most after he was shot.

The Insurance Company contended in the District Court and contends here that the evidence in the case was not only insufficient to prove an accidental death, but actually demonstrated suicide. This position was based in part upon evidence relating to the mechanical structure of the gun and in part upon circumstances which suggested a motive for self destruction. An expert in fire arms testified for the defendant that as the gun was equipped with a safety device, it could not be discharged accidentally. In addition there was weighty evidence to show that the deceased was in bad financial condition, without income or earning capacity; that he had forged his wife's name to the assignment of a mortgage which was in default when he died, and there was danger that his crime would shortly be discovered. Other insurance policies on his life for substantial sums were outstanding which would have lapsed on the day following his death unless the premiums were paid. The insured had no money in bank and had issued four checks which were dishonored for insufficient funds. The inventory of his estate filed by the beneficiary as executrix disclosed that the insured had left no cash on hand or in bank. On the other hand, a fire arm expert produced by the plaintiff gave evidence which had some tendency to show that the gun could have been accidentally discharged; and the insured's wife, who was the beneficiary named in the policy, testified that at the time of his death the insured had approximately $480 in his home. The defendant, at the conclusion of all the evidence, made a motion for a directed verdict in its behalf on the ground that the only reasonable inference that could be drawn from the evidence was that the death of the insured was not accidental. This motion was overruled and the case was submitted to the jury which found a verdict for the defendant.

It is manifest from this recital that the District Judge was correct in submitting the case to the jury. While the evidence furnished ample support for the verdict of suicide, it cannot be said that no inference other than suicide could be drawn from the facts laid before the jury. The plaintiff contends on this appeal that the judgment of the District Court should be reversed, because of erroneous rulings on questions of law which arose during the trial. The judge refused the plaintiff's request to charge the jury that since a violent death had been shown, and the issue was whether the death was accidental or suicidal, the presumption was that it was accidental and the burden of proof rested upon the defendant to show the contrary by a preponderance of the evidence. The judge also refused to charge that the presumption against suicide is evidence to be considered and weighed by the jury along with all the other evidence in the case. It appears that the judge felt bound by the rules of law laid down in Jefferson Standard Life Ins. Co. v. Clemmer, 4 Cir., 79 F.2d 724, 103 A.L.R. 171. It was there held that in a suit on an accident insurance or on the double indemnity clause of a life insurance policy, the burden of proof is on the person claiming under the policy to show accidental death, and that the presumption against suicide is not itself evidence but a rule of law which, in the case of an unexplained death by violence, requires the conclusion that death was accidental until credible evidence of suicide is offered; and when such testimony is offered, the jury passes upon the issues in the usual way, taking into consideration the abnormality of suicide and giving it such probative force in connection with the other facts of the case as their judgment dictates.

It is contended that these are not the governing rules in South Carolina, as announced by its highest court, which we are bound to follow under the doctrine of Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487. We shall assume, without deciding,¹ that the question here at issue falls within the doctrine of that case; but we are unable to say, after a careful examination of the South Carolina decisions, that they require the trial judge in a case like this to give to the jury the instructions requested by the plaintiff. It is true that there are a number of South Carolina cases which speak of the presumption against suicide and of the burden of proof resting upon an insurance company to show suicide as a defense to recovery upon a policy of insurance, and it has been said that when the plaintiff makes out a prima facie case of violent death, the burden shifts to the defendant. See Latimer v. Woodmen of the World, 62 S.C. 145, 151, 40 S.E. 155; McKendree v. Insurance Co., 112 S.C. 335, 99 S.E. 806; Dill v. Sovereign Camp, 126 S.C. 303, 120 S.E. 61, 37 A.L.R. 167; Sanders v. Commonwealth Life Ins. Co., 134 S.C. 435, 447, 132 S.E. 828; Swofford v. Life Ins. Co., 159 S.C. 337, 157 S.E. 7; Linnen v. Commercial Casualty Co., 152 S.C. 450, 453, 150 S.E. 127. But with the exception of the last-named case,² these were life insurance cases in which the insurer, as defendant, was setting up an affirmative defense under a provision of the policy whereby the insurer was freed from liability in case of suicide, and therefore had the burden, under the settled rule, of showing that the case fell within the excepting clause. Reference to this situation is made in some of the cases. Thus, in Latimer v. Woodmen of the World, supra 62 S.C. 145, 40 S.E. 156, it was said that "the defense of intentional self-destruction to a policy providing a forfeiture for that cause is an affirmative defense, and the insurer seeking to avail thereof must specifically plead it and establish it by the preponderance of evidence"; and in Marsh v. Pioneer Pyramid Life Ins. Co., 174 S.C. 59, page 63, 176 S.E. 878, 879, where the suit was brought on a double indemnity policy and the plaintiff sought to recover only the face of the policy, the court said "it was not necessary for the plaintiff to show that the insured did not commit suicide, but it was necessary for the defendant to show that the insured did commit suicide"; and in Mandis v. New York Life Ins. Co., 177 S.C. 390, 181 S.E. 472, the court said that it must be kept in mind that the burden of proving death by suicide as a defense in a suit on an insurance policy is on the defendant. See, also, Jennings v. Clover Leaf Life Ins. Co., 146 S.C. 41, 44, 53, 143 S.E. 668.

In Mandis v. New York Life Ins. Co., supra, suit was brought to recover double the face of...