State Life Ins. Co. v. Sullivan

• Decision Date: 16 May 1932
• Docket Number: No. 6605.,6605.
• Citation: 58 F.2d 741
• Parties: STATE LIFE INS. CO. v. SULLIVAN.
• Court: U.S. Court of Appeals — Ninth Circuit

58 F.2d 741 (1932)

STATE LIFE INS. CO. v. SULLIVAN.

No. 6605.

Circuit Court of Appeals, Ninth Circuit.

May 16, 1932.

Raymond Perry, of San Francisco, Cal., for appellant.

Sullivan, Roche, Johnson & Barry, of San Francisco, Cal., for appellee.

Before WILBUR, Circuit Judge, and ST. SURE, District Judge.

WILBUR, Circuit Judge.

This is an action brought against appellant insurance company by Adelaide F. Sullivan, the beneficiary in two policies of life insurance for $5,000 each issued by the defendant in 1918 upon the life of her husband, Eugene J. Sullivan. The jury rendered a verdict in favor of the plaintiff for $10,000, and judgment followed, from which the insurance company appealed.

The principal question involved in the case is whether or not sufficient proof of death was offered by the appellee to support the finding of the jury to that effect. The appellee relies upon evidence of the disappearance of the insured on July 23, 1929, and supplementary circumstantial evidence which appellee claims was sufficient to establish death prior to the institution of the action and to the expiration of the seven-year period necessary to raise the legal presumption of death.

At the time of his disappearance, the insured had been of unsound mind for about nine years, since 1920. He was suffering from a manic depression type of insanity with hallucinations of persecution and inability to co-ordinate himself to his environment. He had once jumped into the San Francisco Bay in an attempt to commit suicide in 1920, and had subsequently and frequently threatened to take his life by drowning himself in the San Francisco Bay; he had attempted to cut his throat; he had for some time been under almost constant surveillance to prevent suicide or disappearance; at the time of his final disappearance on July 23, 1929, he was without funds other than the sum of 35 cents, barely enough to get him on board a ferryboat; he was becoming weak and emaciated, for he refused food because he believed he was being poisoned; he weighed only 90 pounds, although five feet seven inches in height; his physical condition was such that in the opinion of his family physician, who testified in the case, even if he had not disappeared, he would not have lived more than 6 months; he was not physically or mentally able to work, and had not done so for some time. At the time of his disappearance the insured was 63 years of age. He had been married for over 40 years to the appellee. They had eight living children of ages ranging from 21 to 40 years, two of whom were living with their parents at the time of the disappearance of the insured, and four others living in San Francisco. The insured and his wife had lived for more than 40 years in San Francisco and had many friends and acquaintances therein. He had been actively engaged as a real estate broker for many years prior to his sudden illness in July, 1920, at which time he experienced business and financial troubles, and became suddenly insane with hallucinations of persecution, and on July 12, 1920, made his first attempt at suicide by jumping into the San Francisco Bay. From June to December, 1920, appellee always accompanied the insured when he left the house to go to various places in San Francisco and across the Bay. While on the ferryboat he always wanted to ride on the lower deck, and would go to the side and try to jump into the water and would have succeeded if he had not been restrained. He was committed to the State Hospital for the Insane at Agnews on December 21, 1920, after an attempt to commit suicide by cutting his throat. The attempt was unsuccessful because of the intervention of his daughter. He was paroled on June 8, 1921. He had periods of improvement and other periods of melancholia. For 6 or 7 years he was able to go around San Francisco and other places unaccompanied. In March, 1929, his condition became such that his physician advised that he be again committed to an asylum. Beginning in May, 1929, because of his condition, the family did not permit him to go out alone. His health was very poor, he refused to eat, could not sleep, was frightened and terror stricken, had hallucinations of being pursued or persecuted by imaginary persons. These delusions continued to the day of his disappearance. For 4 weeks prior to his disappearance, nearly every day he would say something about ending his life. During that time he was not left alone day or night. The day before he disappeared he proposed to his wife that they commit suicide together, claiming that neither had anything left to live for. He did not sleep at all the night of July 22d, and his wife was up with him nearly all night. On the morning of his disappearance the insured went up to the attic on the third floor, dropped his hat from the window, saying he wanted to see how straight it would fall. He walked up and downstairs repeatedly all that day before ...