Appeal from the District Court of the United States for the Southern District of Illinois, Northern Division; J. Leroy Adair, Judge.
Before SPARKS, MAJOR, and MINTON, Circuit Judges.
This is an appeal from a judgment in favor of the defendant in an action to recover life insurance benefits on two policies wherein plaintiff was the designated beneficiary and her brother, Louis Cohen, the insured. The complaint alleged that the insured died on January 5, 1941, as a result of a gunshot wound inflicted on that date, and that said death resulted through "external, violent and accidental means," within the language of the policies. Defendant's answer denied that the insured came to his death through "external, violent and accidental means." The policies sued upon were attached to the complaint and contained a provision which relieved the defendant of liability where death resulted from "suicide, while sane or insane." This suicide provision was not mentioned either in the complaint or in defendant's answer. Prior to trial, plaintiff, in response to defendant's demand, admitted that death was due to a gunshot wound. Thus, in effect it was stipulated that death was caused by external and violent means, leaving for trial the sole issue as to whether death was due to "accidental means," as alleged by plaintiff and denied by defendant. The cause was tried to a jury which found, "The death of Louis Cohen was not the result of external, violent and accidental means." Upon this verdict, judgment from whence this appeal comes was entered.
The contested issues are (1) the court erred in its refusal to direct a verdict in favor of the plaintiff, and (2) in its denial of plaintiff's motion for a new trial.
As to issue (1), the contention of plaintiff is stated in her brief as follows: "It is our position that since plaintiff was entitled to a directed verdict on the pleading because of the legal presumption against suicide and in favor of accident, she was still entitled to such a verdict at the close of the evidence, because the testimony strengthened the presumption in favor of accident and no evidence was offered which tended to establish or even suggest suicide."
If this premise be sound, we wound have no difficulty in agreeing with plaintiff's contention. That is, the presumption in favor of accidental death was such as to entitle plaintiff to a verdict prior to the introduction of evidence as to the circumstances and conditions surrounding the insured's death. Manifestly, if the evidence strengthened the presumption in favor of accident, there was no jury question. Thus, we are confronted with the necessity of examining the proof, not for the purpose of making an independent decision as to whether the insured's death was caused by accidental means, but solely for the purpose of ascertaining if the proof, notwithstanding the presumption, was such as to warrant the court in submitting such issue to the jury.
Louis Cohen, a single man fifth years of age, was found dead from a bullet wound through his head in the family garage at his home in Peoria, at about 12:30 noon on Sunday, January 5, 1941. The bullet entered his right temple, passed directly through his head and out through the left temple. The garage was located north of the residence, at the rear of the lot, and was equipped with folding doors which opened into an alley. Its dimensions were 24 feet north and south and 19 1/2 feet east and west. There was a door about three feet wide at the end of the garage toward the house (south end). The garage contained two stalls, with no partition between. The insured kept his car in the west stall and his sister Sadie (plaintiff) kept her car in the east stall. They were both in the habit of backing their cars into the garage so that when placed they faced the alley.
A large amount of testimony was offered by the plaintiff for the purpose of showing the absence of any motive on the part of the insured to take his own life. Inasmuch as this phase of plaintiff's case is not seriously disputed, it appears that a brief resume will suffice. The insured resided with his eighty year old mother and an unmarried sister, Sadie, in a closely built up and well known residential district. Another unmarried sister, Lillian, was at home for a week-end visit at the time of insured's death. The insured and his sister, Sadie, operated a number of gasoline filling stations in Peoria and conducted a scrap metal business at East Peoria, employing about forty persons. They were in a sound financial condition, with substantial bank deposits. The insured was a strong, healthy man and was more than ordinarily attentive to his business affairs. On the morning of the day of the fatal occurrence, as well as the preceding day, he had numerous business engagements and made at least one business appointment for the following day. A number of witnesses who saw him on the day of his deatah and days immediately preceding gave testimony that he appeared happy and in good health, in fact, normal in every respect. On the morning of his death, as was his custom, he arose at about six o'clock and left his home for the purpose of visiting his filling stations to collect from the attendants thereof the reports and cash proceeds from the preceding day's business. Before completing this routine, he attended services at a Synagogue. While at church, he purchased tickets for a concert to be held there that evening and promised to be present the following Thursday at a memorial for his deceased father. Subsequently, he returned home and had breakfast with his family.
After breakfast, he went to his office in East Peoria at about 9:30, where his sister, Sadie, was working on the books. At about 11 o'clock he took a pouch containing cash receipts in the amount of $3600 and left in his car for downtown for the purpose of making a deposit in the Commercial Bank, which maintained an outside depository for the convenience of Sunday customers. This money was deposited. On the trip to the bank, the insured, as often was his custom, carried with him a revolver. A newsboy testified to selling the insured three Sunday papers at about 11:30 (this was the last witness who saw him alive). The insured had promised his mother that he would be home early for dinner, and when he had not arrived by 11:30, she became uneasy.
About 30 minutes after noon, his sister, Lillian, went to the garage, all the doors of which were closed.She opened the west doors at the north end of the garage and discovered the insured's car in its usual place and his body lying on its back on the concreate floor, with his feet toward the alley and his head toward the south end of the building. She returned to the house, did some telephoning, and went back to the garage, where she observed a revolver lying on the garage floor near the wall of the garage and about two feet north of the insured's body.The space between the car and the west wall where the body was lying was about two feet in width. Lillian picked up the revolver, carried it into the house, and laid it on top of a table in the dining room. Shortly afterwards, Sadie arrived home and a number of other persons arrived at the scene of the fatal occurrence, including police officials and two physicians, one of whom was the Coroner of Peoria County. The police official were unable to ascertain the whereabouts of the revolver from Lillian, but upon the request of the Coronor, appellant took the revolver from her purse and handed it to him. There was evidence of blood on the left side of the car (the side next to the insured's body), and there was an indenture on the west wall of the garage, showing a small streak of lead about five feet and three inches above the spot where the insured's head was resting on the garage floor where he was found. A bullet was found near the southwest corner of the garage. The revolver when found was empty, except for one discharged cartridge. There is no dispute but that the revolver found was that of the insured, and the bullet found in the garage was shown to have been fired from the insured's gun, although there was no direct proof that this was the bullet which passed through the insured's head.
Defendant's witness Gerber gave expert testimony, based upon the character of the wound, powder burns and other attendant circumstances, that the muzzle of the revolver at the time of its discharge was not further than two inches from the insured's head. (The admission of this testimony is one of the reasons assigned in support of the motion for new trial.) This same witness testified as to a paraffin test of insured's right hand, which was negative; that is, it indicated that there were no powder marks of burns on the hand. However, certain conditions were enumerated which made this test of little value.
No person other than one Gearhead is shown to have heard or observed anything out of the ordinary at or about the time the shot was fired. The latter did not testify, but his statement, contained in an affidavit in support of a motion for continuance, disclosed that about noon on the day of the fatality he was in his yard north of the Cohen garage and thought he heard a shot. He looked in the direction of the garage and saw no one, and the doors were closed. (The denial of the right to impeach this testimony is one of the grounds assigned in support of the motion for a new trial). Other than the wound which produced death, there was no evidence that the insured had been molested or interfered with. As stated, he was fully dressed, including an overcoat, and on his person were found a gold watch and a purse containing about $32.00. Plaintiff testified concerning an attempt to break into their house a few nights previous to the insured's death.
Plaintiff cites a large number of cases, both Illinois and Federal, in support of her theory of the case. Inasmuch as the substantive rights of the parties must be determined by the law of Illinois, there seems to be little, if any, occasion to examine Federal cases or those from other states. In passing, it is pertinent to observe that the authorities disclose almost endless confusion in the treatment accorded the presumption which plaintiff relies upon. This is especially so in its procedural aspect. For instance, it has been held that in cases where the issue for decision is whether death was the result of accident or suicide (plaintiff urges that is the issue here) that the burden is upon the defendant to establish the latter. Such cases, so we think, are logically distinguished in Jefferson Standard Life Ins. Co. v. Clemmer, 4 Cir., 79 F.2d 724, 731, 103 A.L.R. 171. See, also, New York Life Ins. Co. v. Gamer, 303 U.S. 161, 171, 58 S. Ct. 500, 82 L. Ed. 726, 114 A.L.R. 1218; Wigmore on Evidence, 3rd Ed. 2510. We agree with the rule that where the plaintiff relies and declares upon the provisions of a policy which insures ...