Schleunes v. American Cas. Co. of Reading, Pa.

• Decision Date: 15 March 1976
• Docket Number: No. 74--2260,74--2260
• Citation: 528 F.2d 634
• Parties: Louise K. SCHLEUNES, Plaintiff-Appellee, v. AMERICAN CASUALTY COMPANY OF READING, PA., Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 634

528 F.2d 634

Louise K. SCHLEUNES, Plaintiff-Appellee, v. AMERICAN CASUALTY COMPANY OF READING, PA., Defendant-Appellant.

No. 74--2260.

United States Court of Appeals, Fifth Circuit.

March 15, 1976.

Francis G. Weller, New Orleans, La., for defendant-appellant.

James D. Maxwell, Trial Atty., Kenner, La., Lawrence D. Wiedemann, Trial Atty., New Orleans, La., for plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before BROWN, Chief Judge, GOLDBERG and RONEY, Circuit Judges.

RONEY, Circuit Judge:

This is a suit brought by the mother of a deceased insured for the recovery of accidental death benefits on a group life insurance policy. The defendant insurer maintained that the insured, Ronald Schleunes, committed suicide. The jury returned a verdict for the plaintiff. Defendant argues thirteen points on appeal. We do not fully discuss all these arguments. Instead, we concentrate on those issues likely to arise at the second trial. A new trial is required due to error by the trial judge in not allowing defendant to demonstrate the defectiveness in the rifle, and because of improper closing jury arguments by the plaintiff's counsel. We also discuss the burden of proof issue and the evidentiary weight to be accorded a death certificate. Because of the trial errors, we reverse and remand for a new trial.

FACTS

On the afternoon of February 9, 1971, Ronald Schleunes was found dead in his bedroom in his mother's home. He had been killed by a bullet from a .22 caliber rifle. He was twenty-three years old. There were no witnesses to the shooting and no suicide note was found. The rifle was a fifty year old single shot bolt action model. According to Mrs. Schleunes, mother of the deceased, the rifle had been loaded with one bullet three months prior to the shooting. This was done in response to an obscene phone call, but she never told her son Ronald about the incident. Apparently the rifle had been kept in a hall closet and had not been fired for two and one-half years. DP On the same day as the shooting, Ronald's twin brother Donald returned home from active service with the Air Force. It was Donald who first discovered his brother's body, but he was only able to open the door to Ronald's room wide enough to see inside. A neighbor, Gay Greaves, was the first person to enter the bedroom. Greaves removed the rifle which was cradled in Ronald's arms. He then pulled the body away from the door. By the time police arrived, the body had been moved from its original position. The police report classified the death as an apparent suicide.

At the time of his death, Ronald Schleunes was working the night shift for Delta Airlines at the New Orleans International Airport. As a Delta employee, Ronald was eligible for accidental death benefits amounting to $87,500 on a group life insurance policy issued by defendant, American Casualty Company of Reading, Pennsylvania. One of the policy's exclusions, however, provided no coverage for any loss caused or resulting from suicide while sane or insane, or for intentionally self-inflicted injury. Ronald's mother was the designated beneficiary and the plaintiff in this lawsuit. When plaintiff filed a claim for the benefits devolving to her as beneficiary, the company denied the claim on the ground death was by suicide.

Plaintiff filed suit in state court for the recovery of the accidental death benefits, as well as penalties and attorney's fees. The case was removed to federal district court for the Eastern District of Louisiana as a diversity case, and tried before a jury. See 28 U.S.C.A. § 1441(a). Defendant moved for a directed verdict at the conclusion of plaintiff's case, and again upon conclusion of all the evidence. Both motions were denied as to the suicide issue, but granted on the issue of penalties and attorney's fees. The jury returned a verdict for the plaintiff, finding death to have been accidental. Defendant's motion for judgment notwithstanding the verdict, or alternatively, for a new trial, was denied. This appeal followed.

TRIAL ERRORS

The defendant alleges reversible error both in the trial court's refusal to permit a demonstration on how the rifle could be fired, and in the plaintiff attorney's closing argument. The combination of these two errors entitles defendant to a new trial. Although defendant asserts that the trial court should have granted its motion for directed verdict or its subsequent motion for judgment notwithstanding the verdict, we perceive no error under the principles announced in Boeing Co. v. Shipman, 411 F.2d 365 (5th Cir. 1969) (en banc).

Rifle Demonstration

The trial judge refused to permit the defendant an opportunity to demonstrate that the .22 caliber rifle which killed Ronald Schleunes could not have been fired unless certain steps were taken, steps inconsistent with an accidental firing of the rifle. Such a demonstration would have resolved the conflicting testimony of opposing experts. It should have been allowed.

Both parties agreed the rifle was defective and could not be fired in the normal manner of a .22 caliber rifle in proper working order. The normal procedure entails opening the breech, inserting According to the plaintiff's presentation, the rifle could be accidentally discharged by striking the bolt head against an object, once the bolt had been pulled back and the rifle loaded. It was not necessary to depress the trigger. Sergeant Alex Vega of the New Orleans Police Department testified for the plaintiff. He was considered an expert on ballistics and the general subject of weapons, although not an authority on the repair and functioning of guns. He testified that due to the defect, the rifle could not be discharged by pulling the trigger. It could be fired, however, by striking the bolt head or plunger. He examined the rifle shortly after the shooting and test-fired the rifle with a blank cartridge some months later. Another witness, Ray Heard--an expert criminologist--testified that the rifle could be discharged by striking the bolt head, without depressing the trigger.

a shell, closing he breech and pulling the trigger.

To counter this, defendant called as an expert witness Gene Clark, a professional gunsmith. According to Clark, the rifle could not be discharged by just striking the bolt head. He testified that to fire the rifle, two more steps were required than plaintiff's experts said were necessary: (1) depress and release the trigger, (2) push the bolt head forward while depressing the trigger. Once these two steps were completed, the rifle could then be discharged by striking the bolt head.

On four separate occasions, defense counsel sought, unsuccessfully, to demonstrate how these two additional steps were needed to fire the gun. At least one of the attempted presentations occurred during the cross-examination of one of plaintiff's experts. Defendant offered several variations in the manner of demonstration including a demonstration outside the courtroom with court-appointed overseers. Plaintiff did not object to the proposed demonstration.

Whether Ronald Schleunes' death was accidental or by suicide was the sole issue in this lawsuit. He killed himself with the gun. There was no issue on that point. The contested issue was whether he did it on purpose, or accidentally. If the rifle could not be discharged accidentally, the likelihood of intentional death would be measurably increased. Every indication is that a demonstration would resolve the conflicting testimony of opposing experts. Both parties agreed the rifle was in the same condition as it was the day Ronald Schleunes was shot. There was no problem with dissimilarity in the rifle that might produce an artificially different result from what occurred the day of the shooting.

The rifle demonstration would have been proper to resolve the conflict in the expert testimony. The demonstration was highly relevant to the determination of accidental death. In related cases courts have allowed this type of evidence. Cf. C. McCormick, Handbook of the Law of Evidence § 182, at 390--391 (1954) (bodily demonstrations and other experiments in court); Raymond v. Riegel Textile Corp., 484 F.2d 1025, 1027 n.8 (1st Cir. 1973) (exhibition of burning fabric); Beisel v. Monessen S.W. Ry. Co., 121 F.Supp. 604, 606 (W.D.Pa.1954), aff'd, 218 F.2d 273 (3rd Cir. 1955) (demonstration of a model hand brake). In cases involving questions of suicide, the courts generally admit evidence pertaining to the manner of firing the weapon. See Annot., 63 A.L.R.2d 1150 (1959). How a gun could or could not be fired is one such instance. See Kansas City Life Ins. Co. v. Bowman, 102 F.2d 510, 511 (9th Cir. 1939).

Although this type of demonstration rests within the sound discretion of the trial court which will not be overturned absent abuse of discretion, Meadows & Walker Drilling Co. v. Phillips Petroleum Co., 417 F.2d 378, 382 (5th Cir. 1969), the apparently easy manner of resolving the crucial conflicting testimony of witnesses militates for a mechanical demonstration. The district court retains discretion to determine the kind of demonstration and the manner of bringing the results before the jury. Our decision is

only that a court-supervised demonstration should have been allowed.

Jury Argument

Plaintiff counsel's closing argument to the jury constituted prejudicial error. Appealing to the religious instincts of the jurors, counsel argued that if the jurors found that Ronald Schleunes committed suicide, they would be condemning the boy to eternal damnation. Defendant did not object to these closing statements. To reverse, plain error must be found. Edwards v. Sears, Roebuck & Co., 512 F.2d 276, 286 (5th Cir. 1975).

Counsel is generally allowed wide latitude in cross-examination and jury argument. These matters traditionally lie within the trial court's discretion. See Shaw Warehouse Co. v. Southern Ry. Co., 288...