Appeal from the District Court of the United States for the Northern District of Illinois, Eastern Division; Charles E. Woodward, Judge.
Before EVANS and SPARKS, Circuit Judges, and STONE, District Judge.
A similar case between the same parties, but on a different policy with a similar clause against suicide, was before us on a previous appeal. 62 F.2d 910. Reference is made to the facts there set forth.
The judgment in the instant case was based upon a direct verdict. The court took the case from the jury because it was convinced that the insured committed suicide. Whether the evidence presented a jury question upon the issue of accidental death is the single question before us.
In disposing of the case, Judge Woodward said:
"In all essential respects, however, the evidence on this trial is not other and different that that received on the former occasion.
"The plaintiff depends for recovery largely on the presumption against self-destruction and on attacking the story of Adamson. Other than Adamson there were no eye-witnesses of what occurred at the time Walter Miller went through the window. Some evidence has been offered, however, tending to show that Adamson could not have seen the occurrence which he relates at length in his testimony.
"But the physical facts surrounding the death of Walter Miller are in evidence. These physical facts are the same as in the former trial. It is undisputed that Walter Miller went out of the south window in his semi-private room on the twelfth floor of the Insurance Exchange Building.
"A replica of the window, together with a radiator which the evidence shows is an exact duplicate of the radiator in front of Miller's window at the time of the occurrence were admitted in evidence.
"Other than the impeachment of the testimony of Adamson the evidence in this case is the same as on the former trial. Adamson's testimony may be rejected in its entirety leaving the undisputed physical facts which the Court of Appeals say
"'Conclusively negatived appellee's (plaintiff's) theory that Miller fell through the window.'
"From the evidence here presented the court believes that there is no issue for the jury. Obedient, as the court believes, to the views of the Court of Appeals as expressed in its opinion on the former appeal, the court finds as a matter of law that the plaintiff cannot recover. The Court would add that its careful inspection of the window, leads it to the same conclusion as expressed by the Court of Appeals."
While this appeal is governed by the law of the case,*fn1 which the trial court properly applied, we have re-examined the testimony to satisfy ourselves as to the correctness of the ...