Reliance Life Ins. Co. v. Burgess

• Decision Date: 05 August 1940
• Docket Number: No. 11657.,11657.
• Citation: 112 F.2d 234
• Parties: RELIANCE LIFE INS. CO. v. BURGESS et al.
• Court: U.S. Court of Appeals — Eighth Circuit

112 F.2d 234 (1940)

RELIANCE LIFE INS. CO. v. BURGESS et al.

No. 11657.

Circuit Court of Appeals, Eighth Circuit.

May 29, 1940.

Rehearing Denied August 5, 1940.

COPYRIGHT MATERIAL OMITTED

James C. Jones, Jr., and Web A. Welker, both of St. Louis, Mo. (Howard F. Major, of Columbia, Mo., James C. Jones, of St. Louis, Mo., Stockard & Stockard, of Jefferson City, Mo., and Jones, Hocker, Gladney & Grand, of St. Louis, Mo., on the brief), for appellant.

William H. Becker, of Columbia, Mo. (Nick T. Cave, Ruby M. Hulen, Boyle G. Clark, James E. Boggs, Paul M. Peterson, and Howard B. Lang, Jr., all of Columbia, Mo., on the brief), for appellees.

Before GARDNER, SANBORN, and WOODROUGH, Circuit Judges.

GARDNER, Circuit Judge.

This was a proceeding brought by the appellant as plaintiff against the appellees as defendants, under the Federal Declaratory Judgment Act, Jud.Code § 274d, 28 U.S.C.A. § 400, for a determination of the rights of appellees and the obligation of appellant under the accidental death benefit of six policies of life insurance and one policy of accident insurance issued by appellant to Thomas A. Burgess, the appellees' intestate. The parties will be referred to as they were designated below.

Thomas A. Burgess, the insured under each of the policies, died on the 7th of November, 1938, as the result of a gunshot wound, which the plaintiff alleged was intentional or suicidal, but which the defendants claim was accidental. Plaintiff conceded liability for the strictly life insurance benefits of the six policies of life insurance, but denied liability under the policies for benefits for accidental death. These policies were all applied for and delivered in Missouri and were in full force and effect at the time of the insured's death. The life insurance benefits of the policies amounted in the aggregate to $10,000, and each of the life insurance policies contained a double indemnity provision under which the company agreed to pay double the face of the policies in the event insured's death "resulted directly and independently of all other causes from bodily injuries effected solely through external, violent and accidental means." The aggregate amount payable under the double indemnity benefit of the life policies and the accident policy was $11,000. The policies were all payable to the insured's estate and the defendants are the administrators of that estate. Plaintiff in its petition conceded its liability under the life insurance benefits of the policies, and subsequent to the institution of this proceeding, it served and filed an offer to allow judgment to be taken against it for that amount.

A Missouri statute (§ 5740, R.S.Mo.1929, Mo.St.Ann. § 5740, p. 4385) provides that suicide shall not be a defense to an action on a policy of insurance unless in contemplation by the insured at the time the policy issued.

The insured was a man of about forty-five years of age at the time of his death, and for several years had been engaged in the wholesale liquor business at Columbia, Missouri. He lived with his wife, Mae B. Burgess, and his father, Ervin C. Burgess. His death occurred in his home sometime between 11 and 11:30 p. m. At the time he was carrying a shotgun which he had procured from the attic on the third floor of the home. There were no eye witnesses to the discharge of the gun.

The action was tried to a jury. At the opening of the trial, the question as to whether the plaintiff or the defendants had the burden of proof was raised, and the trial court held that the burden of proof was upon plaintiff. The plaintiff excepted to this ruling but proceeded to the introduction of evidence in support of its petition. It offered the policies in controversy and a certified copy of the official death certificate of the insured, which gave the cause of death as suicide from a self-inflicted gunshot wound, and then rested.

Defendants then proceeded with the introduction of evidence, at the close of which the plaintiff moved for a directed verdict, which was denied by the court. The court then submitted the case to the jury, both on the question of an accidental or suicidal death, and on the question of whether the insured was sane or insane at the time of his death, and charged the jury, over objection of the plaintiff, that the burden of proof was on plaintiff to show that the insured's death was suicidal and also that he was sane at the time of his death. The court submitted special interrogatories as follows: (1) "Did Mr. Burgess come to his death as the result of an accidental, unintentional discharge of the shotgun?" (2) "If your answer to the first question is `No' — was his death the result of his intentional act?" (3) "If your answer to the second question is `Yes' — was he sane at the time?" (4) "If your answer to the third question is `No' — was he insane at the time?"

After the jury had had the case under consideration for some time, the foreman of the jury sent the following written communication to the court: "We believe it will be impossible for this jury to reach a verdict under the instructions. We are unanimously of the opinion that Thomas A. Burgess had suicidal intentions, but are equally divided as to whether he came to his death by suicide or accidental means."

Upon receipt of this communication, the court called the jury into the courtroom and directed them to continue in their efforts to arrive at a verdict. Later the foreman of the jury sent a further written communication to the court as follows: "Our unanimous agreement is that, whether accident or suicide, Mr. Burgess was at the time of accident or suicide, not in his normal mental condition, but we are equally divided as to whether death was accidental or self-inflicted."

The court again called the jury into the courtroom and gave them the following interrogatory to answer: "Was Thomas A. Burgess insane, as that term has been defined, at the time of the discharge of the gun?"

The court then re-read to the jury the portion of his previous charge on insanity and directed them to retire for further deliberation. Subsequently the jury transmitted to the court an affirmative answer to the last named interrogatory, and the jury was again brought into the courtroom and the court read to them the substance of his previous charge on the issue of insanity and directed them to retire and endeavor to arrive at a general verdict. The jury later returned a general verdict, finding the issues in favor of defendants. From the judgment entered thereon this appeal is prosecuted.

Plaintiff seeks reversal on substantially the following grounds: (1) the court erred in holding that the burden of proof was upon it; (2) the court erred in its instructions to the jury; (3) the court erred in overruling its motion for a directed verdict; (4) the court erred in denying plaintiff the right, on cross-examination of the coroner, to show the statements made to the coroner by the insured's father while the coroner was making an official investigation of the circumstances of insured's death; (5) the court erred in permitting evidence of insured's statement that he had taken nine grains of nembutal during the evening preceding his death; (6) the court erred in not requiring defendants to elect, at the close of all the testimony, whether they would go to the jury on the theory of an accidental discharge of the shotgun or on the theory of insane suicide.

The question as to who must sustain the burden of proof in a declaratory judgment suit is a comparatively new one, which we think does not admit of a categorical answer. It must depend, as in other classes of litigation, upon the condition of the pleadings and the character of the issues at the time the question is presented. Plaintiff alleged that the insured committed suicide while sane. It alleged an actual controversy, and the proceeding was instituted by it to determine that controversy. Defendants denied that a justiciable controversy existed and put in issue the allegations of plaintiff's petition, but they asked no affirmative relief but prayed only to be discharged with their costs. The question as to whether the burden of proof in its primary sense rests upon the plaintiff or defendant is ordinarily to be determined by ascertaining from the pleadings which of the parties without evidence would be compelled to submit to an adverse judgment before the introduction of any evidence. It is a fundamental rule that the burden of proof in its primary sense rests upon the party who, as determined by the pleadings, asserts the affirmative of an issue and it remains there until the termination of the action. It is generally upon the party who will be defeated if no evidence relating to the issue is given on either side. Lilienthal v. United States, 97 U.S. 237, 24 L.Ed. 901; Omaha Hotel Co. v. Wade, 97 U.S. 13, 24 L.Ed. 917; Davis v. O'Hara, 266 U.S. 314, 45 S.Ct. 104, 69 L.Ed. 303.

Plaintiff contends that in bringing its suit, it did not change the essential nature of the case and that defendants in reality were asserting a cause of action on each policy against it, and hence they must bear the burden of proof. When the questioned ruling was made, the court had before it only the pleadings. As before noted, defendants did not in their answer assert any cause of action, nor did they seek any affirmative relief. The court could not, therefore, have anticipated that they would do so, and hence the ruling when made was correct. Whether the acts of defendants during the course of the trial may have shifted the burden of going forward with the evidence remains to be considered.

The Declaratory Judgment Act, 28 U.S.C.A. § 400, "did not create any new substantive right. It is procedural in nature, designed to expedite and simplify the ascertainment of uncertain rights; and it should be liberally construed to attain that objective." Ohio Casualty Co. v. Marr, 10 Cir., 98 F.2d 973, 975. During the course of...