TRAVELERS'INS. CO. OF HARTFORD, CONN. v. Miller

• Decision Date: 22 February 1933
• Docket Number: 4768.,No. 4767,4767
• Parties: TRAVELERS' INS. CO. OF HARTFORD, CONN., v. MILLER (two cases).
• Court: U.S. Court of Appeals — Seventh Circuit

62 F.2d 910 (1932)

TRAVELERS' INS. CO. OF HARTFORD, CONN., v. MILLER (two cases).

Nos. 4767, 4768.

Circuit Court of Appeals, Seventh Circuit.

November 29, 1932.

Rehearing Denied February 22, 1933.

Jay Fred Reeve, Weymouth Kirkland, Edward C. Caldwell, and William H. Symmes, all of Chicago, Ill., for appellant.

John A. Bloomingston, of Chicago, Ill., for appellee.

Before EVANS and SPARKS, Circuit Judges, and LINDLEY, District Judge.

EVANS, Circuit Judge.

The fact background for the assigned errors may be briefly stated as follows: The deceased jumped from, or fell through, a window of his office on the twelfth floor of a large office building in Chicago, and the fall resulted in his immediate death. The only controverted issue in either case is stated by the question — Was the fall accidental? Only a friend, Adamson by name, was in the room with him at the time deceased passed through the window. On the trial this witness described the occurrence as follows:

"I was in the office of Mr. Miller the morning of his death, October 15th, 1927. It was about 10 o'clock. As I walked in the door Mr. Miller was standing at an open window, the south window of his private office, and he was looking out of the window, and I said `Good morning, Mr. Miller, how are you?' and Mr. Miller turned his head a bit and said `Sick.' I said `What is the matter?' and he said `Oh, these damned teeth.' I said `What is the matter with them' and by that time I had walked over along side of him and he said `Oh, I had some more pulled yesterday. I feel faint and need the air,' and with that he closed the window and returned to his desk and I walked to the other side of the room, across from his desk, intending to sit down and pursue the course of the conversation for which I came in to see him, but rather than, — instead of sitting down he said `Oh, hell, it is no use' and turned around and walked to the window again and threw it open and said `I feel faint, I need the air.' I didn't sit down but just rested on the arm of the chair * * *

"Mr. Miller put his hands on the top of the glass ventilator, standing in front of the radiator, and swayed back once, and then he said `Well, goodbye Bob' and vaulted out of the window.

"Mr. Bloomingston: Did what, — vaulted?

"The Witness: Vaulted out of the window, using the ventilator, the top of the ventilator for his leverage, and he swayed back and dove through head first, vaulted through. I don't know what the term would be best to describe it, but he went through in that manner, headfirst, and of course I ran right over there, trying to grab him, and all that I could do was just touch the calf of his leg as he went out. * * *"

There was also received in evidence a model showing the size of the window, the height of the sill above the floor, the distance of the deflector glass above the sill, the height of the window, etc., the necessary deductions from which, appellant argued, conclusively demonstrated that it was physically impossible for Miller to have accidentally fallen out of the window. A radiator stood immediately in front of the window. Set in the lower inside part of the window sill was a glass deflector, one-fourth inch thick, for use in ventilation, which deflector was broken when Miller went through the window. The broken pieces thereof fell inside "between the radiator and the wall," although parts of said deflector glass were found "sticking in the frame." The model and the measurements are herewith reproduced.

On Adamson's cross-examination, his testimony given at the coroner's inquest was brought out. He there described the same occurrence but left out certain of the facts given on the trial which were indicative of suicide. Following is a quotation of his statement of Miller's actions:

"`Oh, these teeth are bothering me. I had some pulled yesterday and I feel faint and sick' and he pulled up the window and stood there with a fresh strong breeze blowing in from the east, and I stood there and waited for him a moment, and he put the window back down and started back to his desk to talk to me, but apparently he felt faint again and got over towards the desk and he said `I am faint.' `I will have to get the air.' He went back and pulled up the window, standing there, leaning against it, and as I recall his hand, he still held hold of the handles of the sash and I stood there for just a few seconds, I suppose, and he said `This air feels good' and I was trying to determine in my own mind whether I would wait and finish my business conversation with him or whether he would feel more comfortable alone, and I decided I would leave, and I turned to go and as I left the office I turned around and just saw his legs disappearing through the window. Q. Was there anybody else present besides yourself, Mr. Adamson? A. No, sir. * * * Mr. Loftreck: You didn't have much of a conversation with Mr. Miller at that time? A. No, he was feeling too poorly. My presumption was that he felt faint, that he was feeling faint, and lost his balance."

He attempted to explain the discrepancies or omissions in his testimony before the coroner and that given on the trial in the following manner:¹

Adamson was asked what he did immediately after Miller went through the window. He answered that he ran out of the office, shouted, "Oh, my ____," and upon appellee's objection was not permitted to complete the sentence. Appellant offered to prove that if the witness were permitted to answer the question, he would answer, "Oh, my God, Walter Miller has just jumped out of the window." The offer was rejected, and appellant assigned error on this ruling.

This statement was a part of the res gestæ and was admissible. The fact that the tense of the verb indicated a past transaction was not determinative of its admissibility as part of the res gestæ. The witness stated that he had run from the room to get downstairs to the sidewalk as soon as the body went through the window. It is hardly conceivable that more persuasive evidence could be produced. This statement was made almost instantaneously with the occurrence. The circumstances surrounding its utterance, in the presence of numerous people, made falsification or fabrication extremely improbable. Like most statements thus made, which are admissible as part of the res gestæ, it was most illuminating of the truth. If untrue, there were witnesses who would have had strong reason to dispute it. Authorities upholding the admissibility of such evidence are innumerable.²

The court also refused to permit Adamson to testify to a conversation which took place between himself and friends and close relatives of the deceased about twenty-five minutes after Miller died, to the effect that they agreed to give to the press a story of accidental death, and the court also ruled against appellant when it sought to interrogate Reed concerning the conversation with Adamson on the morning of the inquest in reference to Miller's death, in corroboration of Adamson's explanation of his testimony at the coroner's inquest.

We think both bits of testimony were admissible. If the statement given by Adamson on the trial of this case were true, then there existed no issue of fact for submission to the jury. The only impeachment of this testimony was his statement at the inquest. At that time Adamson omitted certain incidents strongly indicative of self-destruction to which he testified on the trial as having occurred just before Miller passed through the window. Adamson's explanation was that he did not give a full and complete story at the inquest, with all the facts indicative of suicide, because he and the friends of the deceased desired to avoid the ignominy which...