79 F. 46 | U.S. Circuit Court for the District of Oregon | 1897
This is an action upon a policy of insurance upon the life of Cochran. The jury returned a verdict for $5,000, the amount of the policy. Cochran was found dead in a spring near his house, from a pistoi shot in the back part of his head, fired from- a pistol in his own hand. A coroner’s jury found that the deceased committed suicide, and the widow, in submitting proofs of death, attached a copy of the findings of the coroner’s jury, as she was required to do by the form of proof provided for her by the company, and stated as the cause of death, “Supposed to have suicided with a pistol.” It is claimed in support of the motion for a new trial that this answer put the onus upon the plaintiff of explaining this statement, and of showing that the deceased did not commit suicide, and that as to this there is a failure of proof. It is held that representations made in the proof of death as to the manner of the death of the insured are intended for the action of the insurance company, and upon the truth of such representations the company has a right to rely, and that the' party making such representations must be held to them until it is shown that they were made under a misapprehension of the facts, or in ignorance of material matters subsequently ascertained. I assume that the statement in the proof of death that the deceased was “supposed” to have committed suicide, although not the representation of the manner of death, but of a current theory in respect to it, has so far the effect of such a representation, inasmuch as it was intended for the action of the company, as to justify the company in relying upon the assumption that the deceased committed sui
The evide*nee tended to show that the supply of water for the domestic and farm uses of deceased was from a large spring near the dwelling house; that it was the dry season of the year; that squirrels had been digging holes beneath the spring, in such a way as to cause loss of a part of the water therefrom, and consequent inconvenience to the deceased and his family, from lack of water; that deceased had been in the habit of taking his p'istol and visiting the spring to shoot these squirrels; that on the morning of his death he went to the spring, having the pistol with him (this was before breakfast); that, when breakfast was ready, Mrs. Cochran called to her husband, who responded to the call, and came and ate his breakfast with the family; that after breakfast be returned to the spring, having the pistol with him, as was his habit; that; shortly thereafter a pistol shot,was heard in that direction, and, upon investigation, deceased was found floating in the spring, face downward, dead, with a large bullet hole behind the right ear. The bullet liad passed through the temporal bone and into the brain, ranging slightly upward and transversely through the brain, lodging there, according to the testimony of the physician who conducted the postmortem examination. Other witnesses, who were* present and saw the wound probed, testily that the bullet ranged downward and forward, so that it would have come out at the lower end and in front of the left ear, had it passed through the head. Tin wound was a ragged, irregular one,—large* enough to admit the index linger of the physician who conducted the post-mortem examination. The spring’ is inclosed in cement walls 5 feet high. It is 9 feet square, and at the time in question it had a depth of water of about b feet. Over this is a spring- house, built of wood. 6 feet high at tin; cone of the roof from the top of the cement wall. Tin* door is at tin* edge of the spring, and is about 2¿ feet high, and of about tin* same width. The bottom of the door opening is the top of a sill some b or 4, inches above the ground. There was some testimony tending to show powder stains or marks at the surface of the wound, but the preponderance of the evidence was against any indication of powder burn upon the skin or hair of deceased, the wound being at a point just in the edge of the hair. There was nothing unusual in the conduct of deceased prior to his death. He was a sufferer from stomach ailments. His son George admitted that he had testified at the coroner’s inquest that deceased told him he would kill himself if he did not get over his stomach trouble; but the witness testifies that he was much excited at the time, and did not know all that he testified to, and that now he has no recollection of such a statement, by deceased. The financial circumstances of the deceased were good, although there was an attempt to show that he was involved over Ms business matters, and was in mental worry on such account. One of these matters involved a friend