*2 under section 5596 of Shannon’s Code which Tennessee, provides “neither hus testify nor wife as to matter band shall them of or that occurred between virtue consequence of in marital This relation.” language unique; somewhat but we cannot otherwise believe than it was infen tion of Legislature; interest of public policy, privileged broad make all confidential communications between husband wife, as were founded in consequence made re the marital incompetency arising lation. thus con tinues after the marital relation has been ter (Patton minated death or otherwise Seay Ed T. Stockell, and W. both of Wilson, 101, 112), 2 Lea and a [70 Tenn.] Nashville, (Keeble, Seay, Tenn. Stockell & fe, addressed a husband wi document to his Keeble, Term., brief), Nashville, on the personal, family, relates to which eonii plaintiff error. wife, dential matters between husband and Pitts, Nashville, (E. John A. Tenn. re which, here has no Ross, Tenn., Pitis, of Savannah, McCon- suit, lation whatever the issues in nico & Hatcher, Nashville, Tenn., recognition uncertainty written brief), for defendant in error'. death, and to bo delivered life after MOORMAN, spirit seem to fall within both the Before DENISON Cir Judges, cuit letter of statute. HICKENLOOPER, District udge. The chief contention error J is that (2d opponent.” jury that, Wigmore before on Evidence charging the court erred in Ed.) “fallacy” § show recover, she must considering Court in a mat- from accidental the death resulted S., dis- ter of means, was an the case Coffin U. is, that it *3 purposeful 156 Ed. 432, 459, 394, S. 15 S. 39 L. tinguished intentional and U. Ct. from seq., rejected, 481 generally et is even death; and circumstanc- now that where the facts by questionable the on Wigmore whether Court. es or See leave it doubtful Evidence, suicide, (notes 4, and 2511 5 and §§ 2491 and or death caused accident 6); Agnew way 165 17 Ct. S., is U. S. 36, the it caused v. probability that pre- 624; S., 41 Ed. 218 S. other, 235, law Holt v. U. U. the the about as much as then 253, 245, 1021, result 31 54 L. 20 Ann. happened 2, S. Ct. Ed. that as the sumes the death Cas. 1138. law presumption and of an plaintiff presumption upon in establish- is the comes to aid of the founded the always of evi- proof.' or a then state of the It ing preponderance proce is her dence; presumption Thus, acci- dural. where where evi that this the circumstances given clearly brought irrestibly into conclu play, dental is is dence lead to the proof suicide, presumption shifts the burden of sion jury, effect the the no plaintiff’s death was defendant, it incumbent accidental arises. The is made the prepon- support a ease can no the to establish receive therefrom. Su defendant preme Knights lost his Tent of v. derance of that the Maccabees evidence deceased King, (C. C. 142 F. self-destruction; 6); and that 678 A. Y. Life life as a result of N. Bradshaw, (C. proof v. 2 presumption F.(2d) stands as Ins. Co. 457 the of accident 5); Weaver, A. evidence to the C. N. life Ins. v. until it is overturned Y. Co. (C. trary. F.(2d) 5).; 8 680 A. Crome C. Von (C. (2d) Travelers’ 11 This, think, is of the v. Ins. F. 350 Co., a fair statement we 8);A. Bank v. Y. Life Ins. question C. Planters N. of error therein charge, so as the far Co., (C. Compare F.(2d) 5). 11 602 C. plaintiff is now in error available Connally. F.(2d) v. exceptions. “Exceptions Co., L. & N. R. R. 4 specific reason (C. 5); Mut. charge 539 C. A. Scharlach v. Pac. specifically made in order must be F.(2d) 5); Co., Life Ins. 16 245 give there opportunity then and C., Ry. Coogan, v. 271 any.” M. & St. P. Co. U. to' if omissions, correct errors S. 46 S. Ct. 70 L. Ed. States, 328, 336, 274 S. Burns United U. jury, charged But as court here 1077). (71 47 653 Con- Ct. L. Ed. S. (clearly where the facts and eirtíumstances whole, strued as in connection and taken meaning physical surround charge facts and case, in the with the evidence ing circumstances) ques leave in have left no doubt minds of doubt tion whether or the death was accident jurors was whether sole issue presumption then a that it was acci only or suicidal. The dental, questions are whether the court erred in founded observations of human here whole, nature and charging life as a does arise. The shifted to proof that the burden of presumption presumption remained is merely the defendant and the effect that the throughout or plaintiff’s in aid of the case recover, of evi must in the absence preponderance of evi- contrary, opponent. dence to from the overcome presumption, such, This as would dence. survive introduction evidence regards principles As established suicide. prove ob suicide or even motive for open.to general application is place it rea accuracy. Thereafter jection presumption A for want of .would soning presumption (Brunswick bur as a- nature, evidentiary in its is not 154,173, Co., Accident Ins. mean Standard Mo. primary usual den of in its A. L. R. jury, 213 S. Von Crome v. ing nonpersuasion of the as the risk of A.) (C. C. Travelers Ins. Co. shifts, never remains with the affirmative 350); but, legitimate as a inference throughout presumption A is a ease. human the effect continue. This evi law, attaching given state of rule loosely consequenc inference is sometimes denominated a dentiary procedural facts certain it presumption. truly nature eviden other duty production as to es presumption tiary procedural. true opponent. evidence of a “effect practical application rules, presumption (that pre real these of law is, the understanding proper jury, merely sumption) is to invoke a rule law merely would seem of words —a compelling jury to reach the conclusion phrasing, method of rule— contrary from established the absence of evidence to the character, of lack jury that the detrimental to his charges ered whether the employment It was despondency. to rebut evidence presumption continues after rebuttable, charging urged introduced, but is court erred pre jury charged that the the burden whether the legit by preponderance to establish destroyed a natural sumption f to his testimony o the came from the decedent inference arises imate (later probative Judge Day death with suicidal given intent. lack rendering Mr. Day), determin Justice proper in effect deems court, against approved presumption ing the issue. in favor must suicide and said: “This every While *4 shifting ease, it, burden in the in a of the stand and be plaintiff results decisive duty by outweigh secondary testimony of the overcome which shall proof in sense its pre rehut the presumption. upon defend- to It easts producing evidence against de else verdict who sumption, or suffer a ant claims the death was intentional that charge court establishing clear that the fendant, prepond- it is the burden of a secondary this had no reference to testimony.” below erance of burden, Under the proof- meaning of Similar have been doctrines announced presumption attached charge, once applied by Circuit Courts of Appeals burden jury, the given effect and been in where facts and other circuits cases defendant, only of upon the not was thrown attending the death were con circumstances actually but going forward with with be reasonably sistent accident or prepon presumption overcoming such hypothesis reconciled with the of accidental stated, evidence. we As derance cause. Parrish v. Order of United Commer doc to contrary well-established (C. 4); this 425 cial 232 F. Travelers, C. presumption and burden trines of F.(2d) Co., Life Ins. 13 Tabor v. Mutual justified, by a considera all, if at and can be (C. 4); v. 765 C. A. Mutual Life Ins. Co. upon be binding the court tion decisions 8). Hatten, F.(2d) (C. 17 889 C. A. Com precise upon question. this low pare Casualty Y. v. Fidelity & Co. of N. Ins. Co. Mc of Travelers’ v. ease 5); Fidelity In the 111 Love, (C. F. 773 C. A. U. S. 1360, 661, 32 L. Conkey, 8 Ct. 127 U. S. S. Guaranty (C. 270 946 Blum, & F. C. Co. brought upon policy action 308, the was Ed. 9).A. containing almost iden of accident insurance jury in charge The the court be provisions provisions the accident with quite manifestly prepared tical carefully low was here in At the trial policy suit. as mind. far with these authorities in So the burden charged the that court McConkey has never advised, the Case we are by preponderance, suicide proving Supreme Court, in been criticized defendant, upon the evidence rested qualified nor Caso has not Thornton presumption that death was was that in former is bind overruled this circuit. The in defendant, that order voluntary, binding ing upon court, and both were this its upon part, sustain issue of suicide The an Court. doctrine the District satisfy overcome this in all thus becomes the law of must nounced voluntary. question. presenting death was That The the identical cases kind, applicable ap a- charge, appropriate ease this situation a most Supreme unequivocally approved If of stare plication was the doctrine decisis. means, Court, saying: doctrine as was said in The Ma the court “Did err this the court C.) (C. 679, 677, 40 F. when saying jury that, as drid “that in the issue by judicial point law once settled de was for un has been precedent guidance overcome com cision it forms less that cases,” must precedents an of courts similar which petent evidence? This be negative.” distinguished in the should be followed swered cannot applied overruled, of until modified or the interests Later this court doctrino McConkey stability uniformity, certainty, Life in the Case Standard & Ac- Certainty promoted. (C. A.) law a rule Ins. Co. v. Thornton C. 100 thus cident equal importance with ac 49 L. R. 116. This latter often of theoretical F. curacy. Myers, Institute, policy. Treas., v. Rose 92 an action an accident The also 238, 249, 110 N. E. jumping being Ohio St. White insured met either al., 110,115. moving 1 Ohio St. issue, from a train. The sole Denman et thrown satisfactorily distin this violent We unable here, was whether death was Ins. guish the case of Travelers’ v. Mc or suicidal. There evi- Co. some charges Conkey Supreme Court, espe deceased or more which the consid- dence 84 Thornton, 461, 474, 262) U. S. eially Co. 24 S. Ct. etc., Standard v.. L. Ed. action, this court as if evidence for circuit, present from the issue; oh plainly, although, if it were substan except eases, these tial a verdict for in that apply the properly would not seem to us type of case never could be say directed. B. principle we law, abstract cannot (C. A.) & O. R. v. R. Goodman following the court an erred in doctrine 58, 59, presump court referred to that nounced these decisions. way tion in a seem to indicate that judgment affirmed. must therefore be regarded we some of due care. (275 Court 48 S. Ct. DENISON, Circuit I concur 645) L. Ed. R. held 167, A. L. thinking was, and this that the lower contributory negligence conclusively ap is, by MeConkey Case, and bound peared, necessarily so denied evidential error; pe- hence that there no “presumption.” See, also, force Par to this “presump- culiar character effect 8) ramore v. R. 5 F.(2d) R. C. A. perhaps justify further of nonsuieide” tion early origin comment. Its seeins we have case as here I doubt decide cases, occasion to did which had any “evidentiary whether there is even infer- course) pre- (rightfully, that there is *5 commonly ence.” sane men do not kill True, suicide, as- sumption of which then and themselves; they do; but often and humán ais presumption sumed that therefore there esperience existing teaches that or imminent All sequitur. non of obvious nonsuieide—an may be fearsome that to some burdens so agree action authorities that in death easy way minds self-destruction the seems is not policy, an where suicide accident and out the there and natural course to take. Here pleaded defense, burden affirmative the as an proof tending was overturn show the proof is on to establish of occurred, the auto have save could not by accident, inclu- death hence turning road, off the intentional driver’s go may sion not suicide. We fur- intended, so suicide must have ánd been ther, that, appeared there concede in case proof tending show that violence, with no facts whatever accident, would follow an not unless (if to show accident or suicide either chance, injury but only pain, and so imagined), case can human ex- suicide could have been There not intended. perience justify inference which would an contrary circumstances to each such a as to re- become strong, these inferences. Proofs indicated a quire put in some tend- insurer overwhelming, suicide, if motive for insured ing to show or else suffer a directed not he verdict; take and others but, facts circum- indicated that after all the fought courageously for vindica- support one and have appear, stances some theories, tion opposing and would scorned some other of the two have suicide Upon any presumption fession. such a record it was for room remains say acci- large is at on whether the conclusion of force. The supported preponderance dent was proof on proofs, the burden of remains inferences; plaintiff. any pre- I and cannot see how sumption, inference, it seems me must even as to the action What be “the true average average man by Judge under circum- stated Paris doctrine” well help Case, supra, F.(2d) page stances could to determine the Van Crome 352. Wigmore, supra, And see 2492. man under these circumstances. §§ The action developing Case, force clarification of true In this McConkey ease, nonsuieide,” “presumption that, spite protesta indicated it to me seems just may made, analogy proof— tions contrary, the references find burden of “presumption nonpersuasion due care” and its de dis risk of shifted to —was appearance evidential In an fendant. As I trial field. read highway MeConkey action based Case, railroad court in cross it was ing accident, is on defendant burden to show than burden rather plaintiff’s contributory show negligence, that, on if the care, hence its antithesis, equally balanced, to be due assumed evidence of each was then procedural overcome. plaintiff.” sense "was “the law for the The Su there is such presumption; preme and it has often approved Court both of these conclu spoken (Balti sions, plainly regarding Court not them as incon
&more Potomac R. Landrigan, R. Co. v. sistent; but the conflict of view revealed Judge HICKENLOOP cited cases conclusions shows the two ER’S reconcile. easy to * et al. v. PEARCE DAVIS Eighth Circuit. of Appeals,
Circuit Court December No. 8078. Parriott, Denver, (Wil- James D. Colo. Lady, Cal., liam Los Angeles, Ellis and A. Doud, Denver, brief), L. on Colo., appellant. Bosworth, Denver, Robert G. Colo. (George Nye King, and William Baird Denver, Colo., brief), ap
pellees. BOOTH COTTERAL, Before Cir- Judges, REEVES, Judge. cuit District BOOTH, ap- Circuit This is an peal plaintiffs from decree which dismissed *6 equity, bill for after want a trial. Juris- upon diversity based citizenship diction is requisite and the amount involved. appellant Al- court below Pearce, fred T. Pearce, Securi- Gertrude ty Realty Company, the Homesites Suburban Company, Olinger Corporation Olinger Corpora- named as defendants. The however, wa.s not tion, process, served with appearance. made bill out that defendant the sets Se- curity Realty corporation Company, a Iowa, formed in October, that its capital par stock consisted of six shares of each; $100 value of is- share was sued to defendant T. two Alfred Pearce and wife, shares to his Gertrude Pearce, they have continued to own said shares.respectively since; ever that one share was issued to L. Eon Davis and two shares to Mary V. Davis, sister shares his the latter be- ing hold in for L. Davis, trust Eon who con- tinued be the owner of said three shares death; Pearce, until his Alfred T. said Pearce, Gertrude Eon Davis were di- company; rectors of said T. that Alfred president Pearce has and Gertrude secretary-treasurer company Pearce of said organization; Prom its L. Eon Davis president death; was vice that about Realty October, Security Company a n written agreement entered into with defend- Olinger Corporation (at time ant George Olinger, Inc.), by called terms which, Security Realty Company ac- quired right large the exclusive to sell tract * Rehearing April denied 12, 1929.