Appeal from the District Court of the United States for the Eastern District of Illinois; Walter C. Lindley, Judge.
Before EVANS, SPARKS, And TREANOR, Circuit Judges.
Defendant appeals from a judgment based upon a verdict in plaintiff's favor. The action was predicated on two $10,000 life insurance policies running to plaintiff of which insured had been secretary and treasurer.
The chief reliance for reversal was the trial court's refusal to direct a verdict for defendant, the motion for which was predicated upon an exception to the general death liability clause. The exception covered the case where an insured met his death through "self destruction" " whether the insured be sane or insane" within two years of the issuance of the policy. Defendant claims that suicide was conclusively shown. Other errors assigned relate to evidence, instructions, and refusal of the court to set aside the verdict.
The evidence of eyewitnesses who described the insured's fall from the fourth floor window, was free from uncertainty or dispute. It and other undisputed evidence disclosed the following situation:
Deceased was 36 years of age at the time of his death. He had been married only a few months. His financial condition was good; he received a salary of $2,000 a month. He was a petroleum engineer, a geologist, a university graduate. He was said to be in good health and in good spirits. Also it was said, and we so assume, he was happily married. He was a man of six feet in height, weighing about 180 pounds, and was described as awkward in movement.
Concerning his doings on the day he died, the testimony is detailed and uncontradicted. It shows he had been drinking heavily and was intoxicated. He and his wife and several others were to meet, and did meet, at a night club, "Lou's Rendezvous," near Mattoon, Illinois, for dinner. Deceased drank more at the bar and returned to his table where he had words with his wife.
He was evidently angry because his wife had danced with another guest at the party. He became enraged and threw his steak at her. She left the tavern alone and drove to their cottage, where she took a bag of clothes, and went to a hotel in the town.
Her husband left the club with a friend who was "staying" with them and they went to his cottage to sleep. The wife decided to phone a mutual friend, who got in touch with her husband, and they all met in the friend's room. There was more drinking there. The wife left and, accompanied by one of the party, went first to a tavern and then to her aforementioned hotel room. On the way they encountered her husband who went with them. The friend urged him to leave his wife until the next morning when they could "talk things over." The husband said he would leave, but asked to speak to his wife alone for a moment. The friend left, but remained in the vicinity of the hotel.
The wife testified that her husband became abusive, slapping her several times, and thereupon she concluded that he was too drunk to reason with, so she decided to scare him. She climbed onto the window sill of her fourth floor room, and in turning, slipped. She grabbed the sill where she clung for a few seconds. Her husband approached her, she says, to aid her, and touched her, but she slipped and fell to the pavement. She lit on her feet, was badly injured, but miraculously escaped death, survived and testified on the trial.
Her story of the events immediately preceding deceased's fall is fully corroborated by the testimony of cab drivers and the friend who accompanied the couple to the hotel. They not only told of Mrs. Lake's fall, but told what followed immediately thereafter when insured came through the window and fell to the sidewalk head first and was killed. These witnesses*fn1 were about a block from the hotel when they heard a woman scream, and ran to the scene. They saw the wife on the window sill, and then saw her slip and fall. She lay on the ground, dead or fatally injured, as they believed. One of the drivers said he turned her over to see if she were dead and discovered she was not.
Another driver said he saw the insured leaning out of the window, his chest on the sill, and his head and shoulders extending about a foot past the window. The driver shouted to the insured to get back, but he replied by swearing and added, "Down I come." The taxi driver shouted at him again, and yelled at the other driver to get out of the way. The various drivers described the deceased's action as "inching" his way, "edging" his way, over the sill.*fn2 They agree, and there is no dispute from any source, that his reply to their shouted urge to get back was, "Down I come" and "here I come." Of this significant statement there is neither doubt nor uncertainty.
The interim between the wife's fall and the deceased's fall was variously estimated as from thirty seconds ...