This is an appeal prosecuted in forma pauperis by the administrator, from a verdict and judgment that he take nothing by his suit on an accident policy.
Appellee moves to dismiss the appeal because neither in fact nor in form is it warranted by the poor persons statute, title 28, § 832, USCA under which it was taken. As matter of form it is argued against the petition 1 : (a) That the administrator *722 is not a citizen of the United States within such statute, whose oath entitles him to its benefits; (b) further, that the petition, not showing that neither the estate nor any person interested is able to pay or secure the costs, but merely thаt the administrator is not and being sworn to by the administrator, and not by the beneficiaries, is defective; (c) that it does not show, as required by the statute, 1 that the cause it seeks to prosecute is a meritorious one.
As matter of fact it' is urged against the appeаl: (a) That both the creditors .of the estate and the widow of the deceased, as beneficiaries subject to its debts, are solvent and amply able to pay or secure the cоsts of the appeal; and (b) that there is no merit in it, because it plainly appears that'not only does the record fail to show the accidental death of the deceased by drowning, but it affirmatively and indisputably shows that his death was voluntary and suicidal.
We cannot agree with appellee that an administrator or legal representative may not prosecute an appeal in forma pauperis. The decisions it cites, Reed v. Pennsylvania Co. (C. C. A.)
*723
We tliink it is plain too, that the ap peal, while taken in good faith, is whollj without merit. The statute undеr which the appeal is prosecuted is a statute oí grace. It extends to those embraced in it, but only to those, Quittner v. Motion Picture Producers & Distributors (C. C. A.)
While appeals may not he prosecuted with effect except where good and sufficient bond is given, or the poor persons statute is complied with, an appel lat e court will not ordinarily dismiss an appeal for defects in these particulars, wi tho ut first affording opportunity for their corr e сtion. Reed v. Pennsylvania Co., supra. The District Judge having granted the p e t it ion on the showing deemed sufficient by him, and the appeal papers having been prepared and lodged here in rеliance on hi s order, we would not, but for the e n tire lack of merit m the appeal, dismiss it wi t hout first giving appellant an opportunity to comply with the poor persons statute, o r give bond. Since the record plainly shows that the appeal is wholly without merit, w e will not put appellant to the amendment of his appeal papers to no purpose, but will now dismiss his appeal.
In the concurring opinion it was said: “In suits on accident policies insuring аgainst the risk of death from external, y and acddental C£mses mere f of death wi]] a(A su(Ece_ piaintiff Ust , . ^ . . . .. . , prove, too, that the death was accidental, * * ' . T , 1 • < ^ ^ lhe true rule, 1 think, is that, where 1 . .rr, ’ i plaintiñ s proor shows a violent death and \ ^ , 1 * , does not show it to have been self-inflicted, r . . ^ . his case is prima facie made out, because ... , , ,*r1 , suicide will not be presumed. When, how~ • 1 . i • . ever, plaintiffs case, as here, conclusively - ■, ^ « • . ,r • n- A i shows death by violencе self-inflicted, . . t , * . . plaintiff has not discharged her burden un- : - r r J , 21 2 mss her procu goes further to snow that . . 1 b r . 1C . n. . the circumstances of the self-infliction are , . r at least consistent with the theory o± ac- . . T_1 . J . J cident. Plaintiff fails here, not because the . , ’ proof has overcome tne presumption . . , ..... . against her son s suicide, but because the b . ’ ,. . , proof fails to raise any presumption in her favor."
Our reasons for concluding that the appeal is without merit may be briefly stated.
The evidence is without dispute. It shows inescapably that appellant’s deco-dent, confronted with a claim of shortage, committed suicide by drowning himself in the Warrior river. The policy on which appellant sued is in substance identical in its terms with the policy we had before
us
in the Wilkes Case,
Later- in the W!lkes Case,_ we said: “Suicide, at least when sane, is not accidenfal death. A plaintiff under this poliCy kas burden of proving аn accidental death, thereby negativing suicide,
In the light of these authorities, it is perfectly plain that no other verdict than the one rendered would have been proper, This being so, it сan serve no useful purpose to prolong the litigation by further perfecting the appeal. Fruitless litigation like that presented here should cease. Kinney v. Plymouth Rock Squab Co., supra.
The appeal is dismissed.
Notes
“Now comes J. J. Boggan, as administrator of the estate of D. J. FUiatruult, deceased, the plaintiff in the above styled cause, and hereby represents and shows unto Your Honor as follows:
“1st. That hе is the_ plaintiff in said canse and prosecuted said suit as such administrator and there was judgment for the defendant and motion for new trial was duly filed and heard by the Court, and
*722 by the. Court overruled on to-wit, thе 31st day of August, 1934.
“2nd: That your petitioner, the said plaintiff in said cause, feeling himself aggrieved by the aforesaid judgment for the defendant upon the trial of said cause, and at the judgment of the Court ovеrruling his said motion for new trial in said cause and feeling aggrieved at the ruling of the Court on the trial of said cause upon the several grounds set out and specified in said motion for new trial, which is hereby referred to and made a part of this petition; and said plaintiff desiring to prosecute his appeal or writ of error in said cause in good faith and believing that he is entitled to thе redress he seeks in such writ of error or appeal, hereby prays that an appeal be granted in said cause from said judgment and from the ruling of the Court upon the motion for new trial therein, and that such appeal be duly allowed by the Court and that citation issue as provided by law and that a transcript of the record, proceedings and papers upon which sаid judgment is based and said motion for new trial was decided, duly authenticated may be sent to the United States Circuit Court of Appeals for the Fifth Circuit, and that the Court will make and enter all such other and further orders and proceedings as may be necessary or proper in the premises, for the perfection of the appeal herein prayed for. .
“3rd; And your petitioner, bоth as such administrator and individually, further states to this Honorable Court that because of his poverty, he is unable to pay ■ the costs of such appeal or to give security for the same; -and that he verily believes that he is entitled to the redress - he seeks in such appeal upon the grounds
hereinabove set out, and upon the various grounds set out in the motion for new trial and uрon the ruling of the Court during the trial upon questions of evidence in said cause and upon the charge of the Court.
“Wherefore your petitioner prays that such appeal be duly allowed by this Honorable Court, аnd that your petitioner, the plaintiff in said cause, be allowed to prosecute said appeal in forma pauperis, the said plaintiff being a citizen of the United States and as administrator of the estate of the said decedent duly qualified as such by the Probate Court of Jefferson County, Alabama, a court of competent jurisdiction, and being unable to pay the costs of such appeal or to give security therefor; and your petitioner prays- that all such orders and decrees as may be necessary and proper in the premises tо enable your petitioner, the plaintiff to prosecute such appeal without paying the said cost or giving security therefor, be made and allowed :
“J. J. Boggan, As administrator of the estate of D. J. Filiatrault, deceased.
“The State of Texas, County of Dallas.
“Before me the undersigned Notary Public in and for said county and State this day personally appeared J. J. Boggan, individually and as administrator of the estаte of D. J. Filiatrault, deceased, who is known to me and who being first duly sworn deposes and says that the averments of the foregoing petition are true.
“J. J. Boggan, Individually and as said Administrator.
“Sworn to and subscribed before me this the 24th day of November, 1934.
“[Seal.] M. T. Watson, Notary Public,