Young v. Travelers Ins. Co.

• Decision Date: 26 December 1933
• Docket Number: No. 887.,887.
• Citation: 68 F.2d 83
• Parties: YOUNG v. TRAVELERS' INS. CO.
• Court: U.S. Court of Appeals — Tenth Circuit

68 F.2d 83 (1933)

YOUNG v. TRAVELERS' INS. CO.

No. 887.

Circuit Court of Appeals, Tenth Circuit.

December 26, 1933.

Philip Kates, of Tulsa, Okl., for appellant.

Richard K. Bridges, of Tulsa, Okl. (H. W. Randolph, John A. Haver, Randolph Shirk, and Randolph, Haver, Shirk & Bridges, all of Tulsa, Okl., of counsel, on the brief), for appellee.

Before LEWIS and BRATTON, Circuit Judges, and SYMES, District Judge.

LEWIS, Circuit Judge.

This action is on a policy issued by appellee to Orlando Halliburton insuring his life against loss in the sum of $7,500 resulting from bodily injuries, effected directly and independently of all other causes through accidental means. Suicide, sane or insane, is excepted from the risk. Appellant is the sister of the insured, and she was named as beneficiary. The complaint charges that insured on the afternoon of October 14, 1931, died as a result of an accidental fall from a window on the seventh floor of the Mincks Hotel in the city of Tulsa. The answer denies that insured's death was accidental, and alleges suicide. That is the only issue.

In Mutual Life Ins. Co. v. Hatten (C. C. A. 8) 17 F.(2d) 889, 890, the court, after stating that the burden was on plaintiff to show accidental death, said:

"Plaintiff, in carrying this burden of proof, is aided by the well-established presumption that death was not the result of suicide. * * *

"Where the evidence shows that insured was killed by external and violent means, there is a presumption also, when the evidence is doubtful as to whether the death was due to an accident or to suicide, that it was caused by accident. * * *

"The presumption against suicide is a rebuttable one, and is to be weighed with all other facts and circumstances in evidence, * * * and, of course, cannot prevail where such facts and circumstances show a deliberate act of self-destruction."

See, also, Frankel v. New York Life Ins. Co. (C. C. A. 10) 51 F.(2d) 933; Wirthlin v. Mutual Life Ins. Co. (C. C. A. 10) 56 F. (2d) 137, 86 A. L. R. 138.

On the first trial plaintiff recovered. The second trial resulted in a verdict for defendant. When the second trial came on it was shown by defendant that one of its witnesses who testified at the first trial resided in the state of Texas more than 200 miles from Tulsa, Oklahoma, where the case was pending; that the witness had promised to attend the trial and defendant had sent him $100 to defray his expenses, but that he was then detained in jail in Texas charged with the commission of a felony and was, therefore, unable to be present; whereupon defendant asked the court to continue the cause until his evidence could be taken or permit the defendant to introduce the testimony of the witness given at the first trial which had been preserved in stenographic form by the court reporter. The court denied the continuance and permitted the introduction of the testimony given at the first trial by the witness. This is assigned as error.

The question has had consideration, but the adjudications are not in harmony. The Eighth Circuit in Chicago, St. P., M. & O. Ry. Co. v. Myers (C. C. A.) 80 F. 361, held that evidence so taken was admissible on second trial where the witness is beyond the reach of process and his personal attendance could not be secured. The same court in Salt Lake City v. Smith, 104 F. 457, on further consideration concluded that the statute on the subject, there reviewed, prohibited the admission of evidence so taken. This was followed by that court in Diamond Coal & Coke Co. v. Allen, 137 F. 705, and Chicago, M. & St. P. Ry. Co. v. Newsome, 174 F. 394.

The same question was ruled on in Toledo Traction Co. v. Cameron (C. C. A.) 137 F. 48, 59, by the Sixth Circuit. Judge Severens, who wrote the opinion in that case, convinces us that evidence so taken, under the facts in this case, is admissible; that the first section of the statute (R. S. § 861, U. S. Code, title 28, § 635 28 USCA § 635) was intended only as a broad declaration of the common law rule; and that the exceptions noted in that section by reference were additional modes for taking evidence not within the common law rule. He said:

"There is no warrant for thinking that in doing this Congress had any thought of altering the rules of evidence which obtained in such courts, or intended to exclude evidence which, without reference to the use of depositions taken under that statute, would be admissible upon the generally recognized principles of evidence. * * *

"If, therefore, the testimony which is the subject of contention in the case before us was admissible by the common-law rules of evidence, the provisions for taking depositions are not material."

He then points out the admissibility of such evidence at common law, citing thereto: 1 Greenleaf on Evidence, § 163; Wharton on Evidence, §§ 177, 178. See, also, Wigmore on Evidence (2d Ed.) § 1413, note 1; Smythe v. Inhabitants of New Providence Tp. (C. C. A. 3) 263 F. 481; Great Northern Ry. Co. v. Ennis (C. C. A. 9) 236 F. 17. Clearly the opinion of the Supreme Court in Ex parte Fisk, 113 U. S. 713, 5 S. Ct. 724, 28 L. Ed. 1117, chiefly relied on by the Eighth Circuit, dealt with a witness (a party to the cause) who resided within the jurisdiction of the court, and there was no reason why the general rule of procedure at common law declared by the statute supra should not be followed.

Appellant also excepted to a portion of the court's charge to the jury relative in part to the testimony of the absent witness wherein the court said:

"Now, there is, gentlemen, in this case some direct evidence. The testimony, and here is the way for you to consider that and the court so instructs you, the testimony of this man Graham, now he says he was across the street and he saw this man in the window and that he saw him there as if he was gazing downward, and that he saw him jump through the window. Now, you have all his evidence; it has already been transcribed by the reporter. Sometimes we have to draw our inferences as to just what the witness means by what he states. Now, further on in the examination of the witness, and I want to try to state it as near as I can the way he gave his testimony, he said he saw him coming through the window, and he made some statement about what he saw him do with his hand, but that is direct evidence, gentlemen. Now that is direct evidence that establishes this fact; that this man came through that window, that is the deceased. Now, Graham says he jumped through the window. Taking his evidence and all the other facts and all the circumstances in this case, it is for you to determine where the weight of the evidence is, whether the preponderance of it, that is the weight shows that he cast himself intentionally through the window or whether he came through the window accidentally. That is the decisive issue, gentlemen, in the case for you to determine, and you have to determine that under all the facts and all the circumstances in this case, and it is a rule of evidence, gentlemen, that although the law raises certain presumptions, and as I have heretofore instructed you, there is a presumption in law that a man does not commit suicide, but that presumption vanishes whenever there is evidence that shows that he did, and where there is counter availing evidence as to whether he committed suicide or whether he was accidentally killed, then it becomes a question of fact for you to determine from all the evidence in the case, bearing in mind at all times that the law presumes a man won't kill himself."

In taking exception appellant's counsel said:

"I want to except to that portion of the instructions on Graham's testimony that he jumped, or ask the court to explain it by an instruction on his testimony on cross examination that he was unable to state whether he jumped or not."

To the exception and request the court responded:

"I said all the evidence was before them. I said to the jury, if his evidence established the fact that this man, it only corroborates the other evidence in this case to that extent at least, that this man came through the window, of course he said he saw him jump through the window, now that is for the jury to determine from his position and all the facts and all his other statements in the case, all his other evidence, and they can have it all, just what inference you draw from that.

"Mr. Kates (counsel for appellant): And his inference on cross examination?

"The court: They know he was cross examined."

There was other discussion relative to this part of the court's instructions. It is true, as the court stated, that the witness testified he saw the insured jump from a window on the seventh floor of the Mincks Hotel, in his direct examination, but the witness with equal positiveness stated more than once on cross examination that he did not see insured jump. The window of insured's room was about eighty feet above the sidewalk. Graham came up in a car and parked it across the street from the hotel. He testified he looked up at the hotel, "noticed a window open, screen up, that it was completely up. I afterwards noticed the screen was in the window but it looked as if it had been knocked out; but a man was standing in the window, a small man, and as I parked I shut the door. * * * after I shut the door I looked up to see what it was all about, and this party seemed to be sort of dazed, that is from the street impression, with a blank stare on his face looking directly down on the street; so I stood there, and as I stood there he jumped out of this window on the pavement." Later he said on cross examination, "the screen was out." This testimony was not only self-contradictory on the question whether insured jumped but also on other material points. Immediately after the tragedy the hotel proprietor examined the room and the screen in the window was up. Graham did not testify that insured stood on the window sill. At different times he said...