232 F. 425 | 4th Cir. | 1916
Bettie S. Parrish, a resident of Fluvanna county, Va., brought this action as beneficiary of a certificate or life insurance policy issued to her son Eugene M. Parrish, as one of its members by the Order of United Commercial Travelers of America, an Ohio corporation.
By plea in abatement the defendant made the point that since the plaintiff is a resident of the Western District of Virginia and the de-' fendant a foreign corporation, jurisdiction of the action was in the District Court for the Western District, and not the District Court for the Eastern District. This plea to the jurisdiction was overruled on the ground that the defendant had waived it by filing a general demurrer to the declaration. The demurrer was also overruled, and the ^defendant then set up these special pleas:
(1) That the plaintiff had failed to comply with the following provisions of the constitution of the order;
•‘In event of any accidental injury on account of which a death claim may be filed against the order, notice of the accident (not the results) must be given in writing to the Supreme Secretary within.ten days thereafter, stating the full name and address of the injured member, date and full particulars of the accident and the name and address of his medical attendant.
“In event of a death resulting from external,'violent and accidental means, as hereinbefore provided, notice of the accident must be given as hereinbefore provided, and, in addition, notice of the death must be given in writing to the Supreme Secretary within ten days after the death.”
(2) That Eugene M. Parrish had caused his own death by intentionally shooting himself in the head with a pistol; and the constitution of the order provided that there should be no liability under the policy for death resulting from intentional self-inflicted injury.
On the trial both plaintiff and defendant asked for a directed verdict. But the District Judge submitted the issues to the jury, with the result that a verdict was found for the defendant. Since the plea in abatement does not challenge the jurisdiction of the federal court,
“bodily injury effected through external, violent and accidental means which alone and independent of all other causes shall occasion death immediately or within six months from the happening thereof.”
It is therefore perfectly clear that the requirement of notice “in the event of death resulting from external, violent and accidental means as hereinbefore provided” applies to a death resulting “immediately”' from the injury.
The important question is whether the plaintiff was entitled to an instruction that Eugene M. Parrish had not committed suicide and that the plaintiff was therefore entitled to recover. On this subject the charge was as follows:
“The court charges you that on the issue of suicide raised by the defendant as a ground for avoiding the payment of the policy sued on, the burden of proof is upon the defendant, to establish such defense. That the presumption, notwithstanding the finding of the dead body of the insured in the position described in the testimony, with his hands on the pistol lying between his legs, and the hole in his head, is that he met his death accidentally, and that the plaintiff' is entitled to recover, unless the defendant can overcome the burden time placed upon it; that is to say, unless the testimony excludes all reasonable hypothesis that the shooting was accidental, and you are convinced that the deceased intentionally took his life by inflicting the wound in his head.”
“Have you Rad a walk like this lately. Had a long letter from Miss M. H. You ought to see what she said, you said alpout me. Will show you soon.”
, The two doors to the room were locked, and there was nothing to indicate the presence of any other person in the room at the time of the tragedy.
“Where the evidence of self-destruction is circumstantial, the defendant fails, unless the circumstances exclude with reasonable certainty any hypothesis of death by accident or by the act of another.”
We cite a few of the many authorities holding this rule to be now unquestioned and restating it in different forms: Travelers’ Ins. Co. v. McConkey, 127 U. S. 661, 8 Sup. Ct. 1360, 32 L. Ed. 308; Life Ins. Co. of Va. v. Hairston, 108 Va. 832, 62 S. E. 1057, 128 Am. St. Rep. 989; Metropolitan Life Ins. Co. v. De Vault, 109 Va. 392, 63 S. E. 982, 17 Ann. Cas. 27; Sou. Atl. Life Ins. Co. v. Hurt, 115 Va.
“We are of opinion that the defense of suicide should be established by clear and satisfactory proof, such as is required to establish a fraud.”
In Leman v. Manhattan Life Ins. Co., 46 La. Ann. 1189, 15 South. 388, 24 L. R. A. 589, 49 Am. St. Rep. 348, the verdict in favor of the defendant on the issue of suicide was set aside, the court saying:
“In this condition of the record there is no adequate basis to refer the death to the intentional act; of the deceased. If there are indications that point to suicide, there are other features not consistent with that theory.”
While that case and this are similar in some of the facts, there are important differences. There, as here, there was proof of death, cheerfulness, and apparent happiness, and absence of any known reason for suicide. The circumstances of death are thus stated by the court:
“The body, found with the wound from a gunshot, causing death; the discharged pistol, wedged, or as if it had been forced, on the thumb of the right hand; the body reclining on the sofa as of one sleeping; the left arm rested on the breast; the right leg crossed on the left; the head in the usual position of one in repose; and there being no evidence of any convulsive movement, if we correctly translate the technical word ‘jactitation,’ used by the physicians who testify. The pistol was ‘tightly wedged’ to the thumb, so as to require force to remove it. The question is whether these appearances point to suicide to the exclusion of any other cause. Why not, with equal potency, to accidental death or death by the hand of another?”
We cannot doubt that these facts might well exclude in the minds of reasonable men any other inference than that the deceased intentionally shot himself; and that the issue was properly submitted to the jury-
In view of this conclusion the question of venue is of no importance.
Affirmed.