United States National Bank v. Underwriters at Lloyd's, London

298 appeal, petition filed for reconsideration of motion to dismiss On dismissing appeal May Motion for Former order withdrawn. 24. to dismiss denied June

reconsideration allowed motion rehearing Argued May 25, petition 5, affirmed November 1963. denied December 1964 BANK v. NATIONAL UNITED STATES LLOYD’S, AT UNDERWRITERS LONDON al et 2d 382 P. 851 2d 396 P.

Phillips, Coughlin, Phillips, Buell & Portland, Young, McColloch & Koerner, Dezendorf, and James petition. for the H. Clarke, Portland, Before McAllister, Chief Justice, Rossman, and Denecke, Perry, Sloan, O’Connell, Goodwin Justices.

SLOAN, J. ap

This here on a case is motion to dismiss peal filing paid county because the fee was not to the filing clerk within the time allowed for the of notice of appeal. presented When the motion to dismiss was first it was allowed because of the decision in Citron v. Hazeltine, 227 Or 330, P2d 1011. A motion majority for reconsideration has been filed. A of the for the court, reasons hereinafter stated, believe that the Citron case should be overruled. appellant

In the instant counsel for case, forwarded appeal the notice of and other documents from Port- county county. land to the clerk of Sherman He failed filing day include a check for the fee. The next attorney called the clerk to make certain the notice appeal of had been received and filed. The clerk Nothing notified him that it had been. was said about days Two fee. preparing later, when the clerk was papers to forward the to the clerk of this court, she noticed that the fee had not been received. She called attorney and notified him of the lack of the fee. inquired satisfactory He if it would be him mail a cheek. The clerk stated that it would be for it was practice merely her endorse the check and forward the last date It arrived after clerk of this court. appeal upon expired could have which a notice

had been filed. Oregon provides

Chapter now Laws 1963, filing statutory payment that the of the fee declaration legislature jurisdictional. has To that extent the is not we are However, decision. overturned Citron aspects equally about other Citron concerned upon effect of the case decision. The obvious Citron county clerks leads us to believe other functions legis- that its overturn is inevitable. As indicated, provide than lative reversal does no more payment filing filing for the of a notice of fee jurisdictional. appeal It does not is not overrule the effect of the ease document filed with Citron filing paid nullity. the clerk for which the is not reading produce can no A literal of the Citron case other conclusion. if

It is said that such hard and fast rule were county clerk not adhered to that would be con- agency required verted to a collection to devote collecting unpaid A much time to fees. review of the statutory respect by in all scheme fees collected prior dispel of and to decisions this court will clerk, that motion. specified

Prior to 1895 the statute a fee to be by charged performed the clerk for each act he filing respect of an action and trial thereof. (2d Oregon 1892) Annotated Laws of 2, See Hill’s ed kept paid compensa- § clerk 2339. The fees as his legislature placed 1895, tion as clerk. In all clerks county salary officers, and certain other basis. the fees that were to The act enumerated 'bé collected by longer property the clerk. The fees were no to be the county. property Oregon of the clerk of the but the page specified § Laws, 8, that act filing required paid filing fees to be for the of various “* * * provided, paper acts and and such shall not * * payment be deemed filed such unless is made; requirement The latter has been retained since that provided date. 21.110. ORS Section 1895 Act salary that the clerk’s should be withheld if he filed collecting neglected a document without the fee or his “* * * duty respect; other until the matter is fully provision rectified.” That too has been carried legislature pro- forward. ORS 205.360. Therefore, the public placing personal responsi- tected the funds bility on the clerk. Reference to the statutes make it paid clear that when whom the fees are and is not material. If the clerk failed to he collect, paid. aspect of the This ease will be referred to later. specification

The and collection of fees the clerk supreme of the court was the same. 2, Hill’s Annotated (2d Oregon, 1892) § Laws of ed 2338. In 1899the clerk supreme placed upon salary court was also filing provided filing and a fixed ap- basis fee an peal Oregon § page in this court. Laws, 1899, 1, 167. provided The act that the fee should be “in advance.” payment appeal substantially of fees on remained general appellate the same until the revision of the governs payment code 1959. 19.035now ORS appeal. fees for It reads: “(1) appeal At the time the notice of is filed provided ap-

with the clerk as in ORS 19.023, pellant deposit with shall the clerk the amount of Supreme filing Court fee.

“(2) days appeal 10 a Within after notice of has filed been the clerk shall send to the Clerk of the Supreme copy at Court, Salem, certified of the

302 appellant’s Supreme appeal Court and the

notice of filing fee.” respecting

Emphasis to 21.050 is made that OES 21.010 paid no clerk of this court contained to the fees be compelling provisions to that above mentioned similar county personally responsible be for the clerks to important to see what the It is now collection of fees. these statutes. court has done with change after the 1899 in The first cases decided merely filing requirement the fee fee held Therkelsen, Therkelsen v. 1899, could not be waived. P In P 57 373. 1903 came Hilts v. 885, 54 75, 35 Or 78, P In 72 697. Hilts was held that Hilts, 162, 43 Or filing prerequisite filing if of the fee is appeal filing transcript then on this court no paid. accomplished unless the fee has been Hilts has controlling in held two later cases of Hart v. been P v. Prather, 7, 119 489, Or Citron Hazel 1912, swpra, at 227 Or 334. There is one other tine, case Templeton Lloyd, statute, has considered this v. 109 P 115 P 1068. This was one of two 52,Or bearing ap name and the same consolidated on cases peal. transcript only A was filed in both eases but one paid. In answer to a motion to fee was dismiss because pay in failure to the fees one of the cases the *“# # gave apparently, court this short answer: transcripts account of the in the two cases of the being delay name filed at the same same some time, payment was caused of fees. This has been cor The motion to dismiss was rected.” denied. This case significance reason of the action In has taken. motion to found the files of dismiss, this court, respondent supra, sup had relied on Hilts v. Hilts, port do not of the motion. We know, what course, prompted earlier Hilts deci- in view of its the court, dispose summarily of this motion to dismiss. to so sion, indicated that, of this court disclose The records quoted portion opinion, that the omission payment filing was corrected a late fee. de- The and authorities cited in Hilts case facts prive significance to the in the it of the attached case Particularly applied decisions. when to the two later present quoted, payment for above fees statute, appeal respect to this court and to the facts of transcript (required the instant ease. In Hilts the appellate procedure) ap- was sent then pellant, deputy clerk of this court at Pendleton. required accompany The not fee did the document. deputy transcript. The clerk did not file the The fee paid, expiration was later after of the time for filing. required The court held that because the statute payment filing of the fee “in advance” that no accomplished paid. could be until the fee was opinion quoted length In the Hilts the court at from Chicago The v. State The & Eastern Illinois Railroad Company al, et 145 Ind 43 NE 226. The Indiana case did no more than decide that an official can pre and should refuse file documents until the paid. scribed are attorney fees In the Indiana case an Secretary took papers of State of Indiana in volving the consolidation of certain A railroads. required filing papers statute of state of such *“* * provided Secretary that the of State shall * * *” papers neither file nor record such until the specified paid. fees were first In this instance the papers Secretary were tendered to the of State for filing. Secretary statutory determined that the filing would attorney, fee be $25,000. The who had papers, being prepared tendered the not pay so away. large papers and took them withdrew the fee, of Indiana then filed the action to collect the The State filing. fee on the basis tender The court recovery Secretary denied on the basis that the had properly refused to file them when the fee forthcoming. That is all that the case held. The case collectability did and could not have ruled on the not, papers of the fee if the official had filed the absent payment on immediate of the fee. opinion Yager,

The Hilts also cites Pinders v. 1870, says 29 Ia The later case 468. little is of conse quence problem at hand. say, accordingly,

It fair to that when the Hilts stripped actually case is to the essentials it holds receiving may deny any filing a official and should any prescribed paid. until fee has been The same is supra, true in Hart v. Prather, 61 Or 7. That case appeal county involved an from the court to the circuit although court. of And, clerk the circuit court had necessary transcript appeal, received the he did not filing expired. file it until the time for had In Hart the filing governed by relating was also the statute county specifically above clerks, referred which to, a said document shall not be deemed to have been filed paid.

until the fee had been Templeton Lloyd supra, In addition to the v. case, atOr this court has considered one 55, other case question actually in which the document in filed paid. Spaulding Log but the fee not That is Co. v. Ryckman, appear 139 Or 6 P2d 230, 25. It would Spaulding provides that the case a workable and sound question solution to the troublesome mentioned at the opinion. outset That is: What is the status of actually a document received and filed or recorded for paid? which the fee was not To continue to hold that such is a as would be the filing result nullity, case, supra, Citron 227 Or could unneces- provoke sary as to the challenge validity any document filed the clerk without payment fee. filing

In the Spauldmg case, clerk county had re- ceived and filed a claim of lien but had failed to collect the required filing fee. It was claimed that the filing was, therefore, nullity. This court held that when the lien claim was presented filing clerk should have refused to have filed it until the fee was paid. But filed the having same the by reasons of clerk, became statute, liable personally for the fee and that was valid. filing Such ruling protects filed document and the recovery public funds. The county clerk should refuse to file document unaccom- the fee. if panied by But he does act then the clerk, by statute, for the responsible fee and the amount thereof deducted from his salary. in the Spauldmg opinion case distinguishes Hilts,

both Hilts v. and Hart supra, v. Prather, supra, on the valid ground that both eases involved different statutes. They also can be distinguished because they presented different facts and different problems. v. Hazeltine,

Citron supra, 227 Or at 334, distin the Spaulding guishes case and clings to the Hilts Hart cases. If our appellate had procedure not been changed and if fee filing were still re be “in quired to paid, advance” to the clerk of this and. if the court, statute had not been amended to pro vide only the timely filing notice of appeal jurisdictional was (OBIS (2) 19.033 then ) the decision in the Citron case could more nearly be sustained. But the 1959 amendments did radically change the fee schedule to paying this court.

The statute in to the respect of payment the fee to comity transmittal of the fee to the clerk set It is clerk of this court has been before forth. now county clerk. the notice of the burden of the appeal When in the instant was tendered to the clerk case filed the notice until she received she should not have the fee. she did. Whether she collected the fee But days or not it was due in this court 10 later. It would county up be clerk to forward the fee here appellant it from the whether she had collected or not. paid regardless. The would have to have been here fee clearly As so indicated the facts in this case, county only agent clerk transmittal to forward only specified the fee to this court. The deadline payment part the statute is the to the clerk here. No county remains with the fee clerk. The fee is paid performed county function clerk. This is a distinct difference to the former directly practice paid the fee when to the clerk of this court. importance adoption

The of such rule respect numerous documents that are to be county overemphasized. filed with the clerk cannot be proposed protects filing The rule here for the clerk, rejected. protects public sans fee can be It fund remedy for there is an immediate at hand for the col lection of the fee. The statutes can be said to intend filing unpaid that the solution to an fee is not to vitiate the document but to collect the fee from the clerk. statutes, before indicate that the mentioned, purpose govern validity is to collect the not to fee, payment secondary and that time of documents payment. to actual dismissing appeal

Former order withdrawn. Mo- tion for reconsideration allowed and motion to dismiss denied. J., dissenting. C.

McAllister, tbe was dismissed because of failure This appeal tbe clerk county tbe with tbe appellants deposit fee witbin time allowed for filing Court Supreme a notice of ORS 19.035. filed filing appeal. Appellants which was denied. Tbe petition rehearing matter on what is in is before us now effect second petition for rehearing. v. Hazeltine, Citron my

In opinion 227 Or 330, 361 P2d was correctly decided and is controlling I here. would adhere our order dismissing ap- peal. JJ., join in this dissent.

Rossman Perry,

ON THE MERITS argued James K. Buell, the cause Portland, for appellants. Phillips With him on the H. H. briefs were Phillips, Coughlin, Phillips, and Buell & Portland. Roger argued Dick, L. The the Dalles, cause for respondent. On the brief were Dick Dick, & The Dalles.

Before Chief Justice, and Bossman, McAllister, Goodwin Jus- Perry, Sloan, O’Connell, Denecke, tices.

O’CONNELL, J. This is an action to recover under a $100,000 cer- tificate of accidental death insurance issued the gunshot The insured died a defendants. of wound. appeal judgment from a Defendants entered on a plaintiff, verdict executor of the insured. The issue at trial was whether the insured, Marion bodily Mark died as a result Powell, of accidental in- principal or as a result of suicide. Defendants’ appeal is that there was not sufficient contention on support a of accidental death and evidence verdict denying their mo- the court erred that, therefore, for a tion directed verdict. opinion supporting are of the that the evidence

We theory plaintiff’s justify of the case was sufficient submitting jury. the case to the was a Moro, resident of

Powell, insured, Sher- operated County, Oregon, owned and a man where he years age large of at the wheat ranch. He was 49 time as a of a in- of death. He died result head wound his discharge Remington of a 30.06 rifle flicted spare sleeping he alone room in while was showed that the basement of his home. away lip, penetrated part bullet first lower blew just upper palate behind the front teeth, of the hard through maxillary eye, proceeded the left the left bone, finally tip lobe the brain out the frontal part through upper There of the forehead. was path portion on evidence of the bullet directly on cement wall behind the bedstead and wife found him he of the bed. When Powell’s head leaning against his in bed. The rifle was on back resting bed the muzzle floor. with contention summarized the fol- Defendants’ lowing from taken their brief: statement proved undisputed physical plain- facts

“The flat Powell was on his back in tiff that Mr. show against or in his the rifle muzzle mouth bed with gun path that of the fired; at the time body, through parallel to the the roof bullet was eye, through out the left into mouth, of the ticking temple, of the the vertical metal skull, out and into the cement bed in the head strut body directly parallel to in line his with wall undis- of his on the bed. These head position overcome the presumption facts puted physical aas matter of law. How else could happened?” it have circumstances points following

Plaintiff which could satisfaction explain jury’s an than an accident rather as wounding attempted suicide; Mr. ballistics

(1) Stanley McDonald, expert, Powell opinion testified that his did not shoot him He drew this intentionally. self conclusion from the character wound and the absence of visible on Powell’s face. ‹ He soot pattern testified that tests made with Powell’s rifle showed that the muzzle end would have to gun be more than 12 inches away pattern before soot would not be visible. He further if testified the muzzle of the had gun been in Powell’s mouth at the time of discharge the explosive force of the expanding would gas have “entirely blown ‹ Dr. Skirving, immediately who attended Powell after shooting, testified as follows: “Q you Did look to determine whether there was a soot

pattern on the face of Mr. Powell? did, specifically, “A We and we looked because at first thought obvious, we it would be and when we find didn’t any very carefully, we looked curious, as we were and there any place any was none determine, powder we could pattern.” or bums soot On cross-examination he testified: “Q you Doctor, already you have mentioned that did not any although pattern, you carefully

find you soot looked. Did find flash bum? By “A you There was none evidenced. I assume searing by intend to mean the flash itself? “Q Yes; you did not find that? any. I

“A did not find

“Q you Did look? certainly “A I did.” According to large portion head. of Powell’s off” a considering analysis the situation, of McDonald’s pat- of a soot and the absence character of wound length length of barrel, of the rifle tern, way only measurements, and other arm, Powell’s intentionally would have shot himself Powell could device such of a mechanical have been use trigger. string There to attached activate a stick or instrumentality kind of this no of Powell was found. in the room which Although (2) that Powell was defendants assume gun plaintiff went in bed when the off, on his back argues while been inflicted that the wound could have sitting on the the bed with his feet Powell was position. In since Powell fact, floor or some other possible living he was it is wounded, was still after in a have wounded while he was that he could been part room distance from the bed some way being after wounded. that he found his to bed possibility is remote because the marks However, trajectory passed in a the bullet made show nearly quite which would horizontal the bed indicate clearly prone posi- on his back in a that Powell was or by the bullet. But even if it is as- tion when struck position in the Powell was described sumed that plaintiff get would still be entitled to defendants, if it is not irrational to assume that Powell position handling could have been in such while purpose killing other rifle for some than himself, i.e., cleaning adjusting purpose part for the it, some happen or like. the mechanism the Gun accidents all of unusual circumstances. It kinds not seem does say simply may because reasonable Powell gun out in have been stretched bed with that no have had he could conclude that reasonable conld taking any object of his own in mind than the other life. clutching cig-

(3) a he was Powell was found When lighter right right He arette in his hand. was handed. accepted, If facts defendants’ version of the clumsy appears a suicide, to be one-handed or at best one. The have that two-handed could believed one gone bent on would have about with little efficiency. It more would have been inconvenient, it get gun would for Powell to the barrel seem, of the up pull trigger mouth to his and the while one hand occupied cigarette lighter. with a was He could have pressed trigger gun or held the barrel with his right cigarette lighter even hand with the in it or he trigger could have activated the with his toe. It seems likely, more however, that if Powell had decided to take his own life he would have done it in a less com- plicated manner. At least the could have so con- cluded.

(4) There was evidence that rifle involved in gone accidentally this case had off on another occa- hunting trip sion. A witness who had been on with Powell testified as follows: “* * * hunting He I and went in his new * * * my

pickup [H]e on clips, ranch. had two and one of them had no shells in it, and the other put clip had shells; and he in with no shells, gun and anything. refused to unlock or do He pickup took it out spotted from the fact we had —in some deer. He was about to shoot and discovered he pickup couldn’t. He took it out of the and he up couldn’t unlock it. He beat it and down with ground, get clip butt and out he put bumper had to pickup it over the and couple force that latch. aWell, of hours later we lost deer. We run hunch of across another always gun put he had and

bunch; way (indicating), I and pickup on the floor this put pointing I asked him to at some, like that didn’t it in way. pointing another ran across the other We stopped pickup. I was I and deer, bunch of driving, the jump and damned— and he went to out getting gun door out the went off as he was yet exactly hand see if it was his and I didn’t watching pulling I it, because was (cid:127)or if was still he right happened It here. the deer. gun he when the went off? was “Q Where just getting out the either door, “A He ground, am I was I not sure which, or on the going quick. gun an off so It was at astounded firing gun says, he swore at the accidental ” thing somebody.’ could hurt ‘The damned day impossible that on the Powell was is not It remedy amade effort to some de- he similar wounded doing A rifle and in so caused it to fire. in the fect frequently that Powell not un- witness did testified brought hunting. gun when home his he it after load justifiably (5) have The could made some- gun leaning against thing of the fact that was (as might not on it it have been the bed and was well body with held in line Powell’s when dis- if was Similarly, glasses charged). Powell’s and dentures rather were found on the floor than on the which bed may suggest that Powell not have in the could been position described defendants.

(6) negating was There evidence for sui- motive jury could have concluded from cide. The the evidence good healthy, financial that Powell was condition, spirits, unhappily good moody not married, or generally day day interested to morose, life. affairs of foregoing summary presents a view of the plaintiff. This is not to

evidence most favorable to suggest tending sup that there was not evidence position. › port plaintiff defendants’ en However, light titled to our evaluation of facts in a most its contention. fi favorable "Wehold that when the evidence is so viewed there was evidence sufficient support jury’s conclusion that Powell’s death injury. resulted from an accidental assignment The defendants’ fifth of error at following exception tacks the instruction to which was duly taken: you presumes

“I instruct that the law never committing guilty one accused of a suicide is thereof. The suicide. It is presumed person doing wrong- that a accused of pre- ful act is innocent of such accusation. Such sumption equivalent is the of evidence and the plaintiff throughout is entitled to benefit its throughout your trial of this case and deliberations on the facts until such if time, ever, sufficient may satisfy your contrary. minds to the presumed gunshot It is therefore that the wounds received the deceased Marion M. Powell were the intentionally result of an accident and were not you gunshot If self-inflicted. find that the wounds the death caused presumption against of Marion Powell unless then, suicide has been overcome › evidence, example, tending There to establish the following: sight gun That the front contained bits of hair; glasses nasal Powell’s Powell’s traces of rifle dentures and contained nitrates; Remington the 30.06 rifle was not previous occasion; had misfired on which that the 30.06 Remington was, fact, sound, rifle in in condition; safe mechanical experienced although had difficulties, that Powell recently; changes marital may that disease have subtle, worked incurable, but personality in his and emotional control. fi Copenhagen, ux, Inc. v. Kramer 535, et 224 Or 356 P2d 1064 (1960).

316 satisfy you, presumed it is

sufficient evidence an the result of M. Powell’s death was that Marion accidental bodily injury not the result and was injury you Generally, that Powell’s if find suicide. plaintiff is entitled accidental, were and death recover. intentionally you shot If find that Powell resulting in his the defendant should death, himself, recover.” was erroneous to state contend that it

Defendants gunshot “presumed” “were that the wounds it is that intentionally an accident and were not result of argued gives It that instruction inflicted.” presumption recognition to a of accidental death and presumption. pre is a no such There that there is against pre sumption it but this conceded, suicide, sumption, argue, not “breed another defendants does Although presumption that the death was accidental.” every presumption case, cannot, presumption of a of accidental be stated terms death, fl are unable to see difference in the we expressing presumption (i.e., manner of in terms suicide) accident or if the sole issue is, as was present in the whether death from acci case, resulted part find no in this dent or suicide. We error instruction. argued further

It is reference the in- fl Anno., (1950), 12 ALR2d 1269 where the See conditions precedent presumption to the existence of an of Ins. Co. affirmative acci also, death are set forth. See Pan-American Life dental (Tex Co., App American Industrial Inv. 207 SW2d 173 Civ v. holding presumption 1947), that no affirmative arises where the provides plaintiff policy must establish that the death of the by external, means, caused violent and accidental insured was Compare except in instances where the defense is suicide. Seater Co., 542, 571-76, Or Mut. Life Ins. 156 P2d v. Penn. holding (1945), P2d 826 that no affirmative of acci probability dental death exists where evidence indicates physical ailments or mental caused death.

317 had of accidental death to a presumption struction to defendants. proof effect of the burden shifting us to re-examine the criticism has char- prompted This suicide and the man- acter of the presumption against is to be instructed with jury respect ner in which the Mutual v. Insurance Co. Wyckoff In it. Life New P2d York, 173 Or 147 227 we held (1944) against that suicide is not although presumption “evidentiary the strict it -has value” sense, an instruction revealing evidentiary quality must be presumption given. Morgan As Professor has out in his pointed com- L Rev (1944) Wyckoff v. ment in 23 Or Co., Mutual Insurance supra, strictly speaking Life itself is not presumption evidence. However, facts which a upon presumption is based may be evidence. treated as The instruction commonly given to a referring Oregon presumption evidence may be as an justified elliptical way of saying facts which the presumption is based upon are to be treated as evidence. However, unless the instruc- on and explain tions the basis for go the presump- not likely is tion, understand the ellipsis. out later how We shall point explanation should be made to the jury. against

The suicide presump a “fact” that has upon tion based probative value. The formally “fact” is not adduced as evidence, but from the generally accepted derived assumption, judi there ais human cially noticed, revulsion against From this fact psychological suicide. it is assumed death when violent is shown to have occurred does not and the evidence establish the cause of death or it is more accident, as suicide probable than not from an statis- that death resulted Stated accident. tically, it of all the violent deaths is assumed that greater from which occur the number result accidents rather than suicide. should be informed that it is entitled generality reasoning use this as a basis that,

since there is a normal human revulsion generally, particular the in the case before deceased experienced it also did and, therefore, the revulsion that not take his own life. The should be told presumption expresses generality only, i.e., ordinarily do not take their lives. The humans own presumption purport does not to describe the state persons every mind all circumstance. In the particular case before it the free conclude from the evidence adduced that deceased over against normal came the revulsion suicide. preliminary question There is of whether we recognize presumption should even the existence of a against present suicide in the case. In his dissent Mr. questions validity Justice of a so-called Goodwin presumption against suicide. This criticism presumption applied at least as suicide, by gunshot expressed cases of death has been wounds, including by Presump the article elsewhere, White, Presump Death tions Cases or Quo Violent Vadis (1960) upon by L 1 15 Miami Rev relied U tion?, dissent. (cid:176) presumption rely upon The critics of the showing majority resulting that a statistics of deaths gunshot by persons from wounds inflicted third (cid:176) See Hartman, Presumption. Against The also Suicide as Applied Cases, Marq (1934); Brey L Insurance Rev 20 fogle Richardson, Distinguishing and Problems of Proof in Sui Accident, (1947). L cide From 56 Yale J 482 stdcide. – On the basis of these sta are motivated presumption against that a is contended tistics recognized where death suicide should not be occurs circumstances. † under ^uch suggestion presumption against sui- ap- in these circumstances does not

cide be abolished accurately peal Assuming to us. the statistics represent percentages of death accident and particular clear where a it will seldom be case suicide, fact-grouping upon falls within which statistics from are based. Where death results wounds not in- may vary person, flicted another the circumstances considerably place, and other motive, indicia, pointing pointing sometimes sometimes point strongly to accident. If the facts more to acci- certainly why dent than suicide, there is no reason plaintiff should not be entitled to have the benefit of simply gen- because the case falls erally category constituting into the the basis for the judge, eventually appel- statistics. The trial late would be confronted with the court, task of de- ciding justified in each case whether or not the facts – E.g., public Statistics taken from the records of the Vital Oregon of the Statistics Section State Board of Health show that (excluding 1962, homicides), firearm in attributable to suicides. of 157 deaths 127 were In there 110 were suicides out of deaths; proportion in 1960 132 firearm the out of 147. † On this reasoning presumption the would be discarded in any ity probabil factual situation where statistics would establish a (e.g., gas of death as a suicide result of carbon monoxide reasoning etc.). carry poisoning, And the would us still further require presumptions us to carve out of all which are based upon groupings probability judicially the factual where statistics probability upon presumption run counter to noticed the which the consistency Moreover, require recognition is based. of a would the presumption probability by in accord the with revealed the present jury statistics. Thus in the that there is case the should be informed presumption presumption of suicide rather than a against it. preferable presumption. recognition It of the is

the informing recognize presumption, the to merely generalization to human re a broad as it is permit opponent to weaken action to suicide, by destroy showing that in facts or the inference points particular other case the evidence way. ‡ reject presumption Those who would gunshot in the case of self-inflicted rely public upon taken statistics from the wounds probable rummage quite that one could It records. running through and find data counter to other records upon general many proba presumptions based other permitted bility. assume that these sta are we When Obviously trustworthy? repre the statistics tistics are hearsay purely statements. the raw Moreover, sent making data was used in tell us what do statistics separating from eases of suicide cases the tabulation question is divided of This court accident. of support a verdict is evidence to of sui there whether present How does the Board Health in the case. cide classify present could classified case? It be either upon accepts way, depending one whether the view ‡ permit Perhaps of evidence should be extended to the rules showing prob data death results from statistical to introduce the defendant greater ability where wounds of suicide instrumentality If the insured’s own hands. imposed an may upon argued be relied statistics abolish that such can be “legislative” (thus facts), court as presumption used the it arguable they equally should be admissible is at least they permit evidentiary used, would rather facts. So destroy applying the sta the court than general probability probability than the derived rather tistical Joseph death. Cf. v. W. H. Groves Latter- of violent all cases from (1960) (statistical Hospital, Day 348 P2d 935 10 TJtah2d Saints negligence prevent arising); from inference held to Ipsa Expert Loquitur Cases, Evidence Res Note, The Use (1958). Pa L Rev 731 U106 in jury the dissent taken the view or taken fully adjudicated the matter is case. Until category placed of unclassified a third in case must be only public two classifi make statistics cases. But the doubtful cases are not reveal how which do cations classification. · purposes It of the for the resolved against presumption is our conclusion present applicable case and that to the facts of the jury made of the existence of the be aware should presumption. (cid:181) a consideration of turn, then,

We defendant’s as to the effect contention that instruction of the presumption constituted error. The trial court first plaintiff that “The instructed the has the burden throughout proving injury this case of this accidental by preponderance greater weight a the evi- —or —of relating pre- the instruction Thereafter, dence.” sumption against given. set out suicide, was above, is in latter instruction the form endorsed in the · may many be assumed that It cases classified quite clearly Board of Health the cause of death could be estab or lished either accidental suicidal. Thus in one case a suicide found; clearly note is mishap another the circumstances show some causing the death. can a How tabulation of such occur clearly showing rences, upon based death, the cause of helpful present be in cases such as the where there is no com parable If, out of suicide, evidence? 100 cases classified as there left, 75 oases in which a suicide note were the tabulation nothing or would mean little a case such as we have here any clearly points no note or other indicia where ilarly, to suicide. Sim significant proportion were it shown that of the listed gun occurred suicides mouth, while barrel was within the decedent’s importance the statistics would be of small here where through lip. entered the bullet decedent’s lower (cid:181) Mr. although rejecting Goodwin, presumption Justice objection suicide, that he states would no have to a majority says being as the instructed it should have been in given is difficult to see structed. It how instruction could be meaning presumption if itself rejected. be

322 part Wyckoff Attention is called to the case. that instruction which states “unless by has been overcome sufficient evi- suicide satisfy presumed you, it that Marion M. dence to is * * * result of an accidental death was the Powell’s injury suicide.” This is tanta- and was not the result of saying of that the defendant has the burden mount to proof, of or of accident, which, on the issue suicide previous instruction would contradict course, proving plaintiff has the burden of that the effect by manner of The contradiction in this death accident. by jury pointed instructing out Professor is (1944) Morgan L Rev 269, comment in 23 Or in his Wyckoff There he states: on the case.

“* * # majority [T]he and minor court, both judge ity, approves the trial that the instruction of proof decedent met his death of that the burden plaintiff. by upon by It is suicide, is accident, universally, agreed generally, a trier that that to instruct if not proving party a fact a has the burden to find the nonexistence of the trier is to direct equilibrium, is in that un is, if his mind convinced that fact prob that its existence is more less he is in nonexistence. Therefore the court, its able than jury cluding would have the in Mr. Belt, Justice they must that find that the in in effect structed sured they unless are convinced committed probable death that his was caused it more that is by by than his intentional act. At means accidental in Mr. Belt would have them time Justice same the structed simple language plain unless that, that the evidence are satisfied minds their they must find that the suicide, committed insured By gym accident. what mental drowned insured obey or other trier of fact could nastics both Where existence instructions? these plead an presumed fact is made issue say party ings that has the burden of in case, the minds of the presumed satisfying say not exist has the fact does party mean on that issue. It can persuasion burden else.” nothing

Professor case Morgan Wyckoff concludes demonstrates “the of a rational again impossibility of a rule which to make a interpretation purports pre- requires which it to until sumption evidence, persist the mind of the trier has been satisfied of the non- the presumed existence of fact and which by evidence, held not to affect burden of persuasion.” We believe that this of criticism the form of in struction in the case is sound. The approved Wyckoff same criticism is to the form of applicable instruction previous oases. n In our previous in some of our given we recognized cases have that an action brought the double indemnity provisions of an insurance policy has of plaintiff the burden proving death by acci dent. We reaffirm this position. n it Therefore, is E.g., n Stage Pierre, 400, 395, (1960) v. St. 224 Or 356 P2d 432 against (presumption Freytag negligence); Vitas, 462, v. 213 Or 467, (1958) (presumption thing P2d proved 110 that once long things to exist continues as Fowler as nature); is usual with of that al, 413, v. 453-54, Courtemanche et 202 Or 274 P2d 258 (1954) (presumption person wrong). Semble, that innocent of Com., (1957) Dimitroff v. State Ind. Acc. 209 Or 306 P2d 398 (presumption duty regularly that performed); official has been Robinson, (1927) (presumption State v. 120 Or 252 P 951 knowledge of to funds). intent defraud and of of insufficient n recognize contrary expressed. We that view has been Thus McCormick, Evidence, pp. argued (1954) 671-672 it is that presumptions “having backing probability” (which, a substantial assume, presumption against suicide) we would include the should shifting proof against have the party effect the burden of to the operates. by adopted whom it Morgan, This view is also Pre sumptions see no reason for value Proof, (1933). and Burden of 47 Harv L Rev 59 We giving probability against special suicide a any policy as evidence nor are to we able find considera justifying imposition proof tions insurer. of the burden of on the jury, in the as was done

improper to instruct present that “unless case, evidence to sufficient has overcome been * * * satisfy you presumed death was it is bodily injury accidental not the result of an the result of suicide.” concluding is im

In such an instruction pro proper, 41.360which we have not overlooked OBS “may presumptions part disputable be vides in * * * unless evidence but so controverted other according jury find to overcome, the bound susceptible presumption.” more than This section is may interpretation. read be as hand, one one On the pre opposing applying only no evidence where binding jury sumption and as been adduced has only if view, On this there under such circumstances. presumption, opposing the were some evidence taking jury, all of the evidence into consideration parties, be would free decide introduced both equipoise, way. the evidence in either Were to find for the defendant inasmuch would be bound proof. plaintiff met his would have burden may interpreted the other the statute be hand, On pre apply opposing in cases even where sumption adduced. view, has been On according presumption to find would be bound the outweighed opposing exceeded unless such evidence or presumption and thus “overcame” it. This inter the place proof pretation burden of on would the the presumption. person meet forced to the legislature do think the intended We OBS meaning. explained latter As 41.360 have Deady’s chapter on Code, footnote evidence 41.360) (including “mainly now what is OBS was con- from Treatise densed and extracted G-reenleaf’s very 315). (p. 41.360 was the Law Evidence” ORS principal expressed probably attempt an to state the Treat section 33 of Redfield’s Edition Greenleaf’s ise. n In that section Greenleaf, discussing presump explains opposing no that “if evidence of tions, pre are bound to find in favor fered, sumption.” (Emphasis supplied). It seems reason express meaning able to construe ORS 41.360 to foregoing quotation found in the from Greenleaf. Oregon-Wash. In Hansen v. R. & N. Co., Or (1920), P P 190, 188 963, 191 655 the word “overcome” equal outweigh. is construed to mean or Thus it is said that equals “when the evidence for the defendant plaintiffs, balances evidence for the the de just effectively fendant has as “overcome” the evi plaintiffs though dence for the as the defendant’s evi incomparably overwhelmingly outweighed dence plaintiffs.” (p. 224-225). We do not think that the word “overcome” as used in the given present instruction in the case would be under by average juror having meaning stood as foregoing quotation. ascribed to it in the We believe jurors that most would understand the word “over “outweigh” regard come” to mean and to the instruc an tion admonition that a as verdict must be returned plaintiff by for the unless defendant established preponderance of the evidence that death probable more than was death accident.

Although jury, was error to instruct the in effect, op- stands unless overcome n The Redfield published years Edition four after likely enacted. It is Code was drafting the earlier edition used in essentially exposition the Code contained the same section 33 Redfield Edition. error to call the not did defendants

posing evidence, already ob- have weAs attention. court’s trial the ground excepted to on were the instructions served, presumption of improperly they to referred that against presumption suicide. than a rather accident made Defendants not error. was held, we have This, language instruction which exception of the to the no request objectionable. Defendants did found we have that if the evidence the effect to an instruction evenly inbe favor of the the verdict should balanced the trial court’s atten- not draw This did defendants. given and view in the instruction the error tion to jury as the court had instructed of the fact that proof, requested plaintiff’s instruction burden unnecessary confusion created for the would be but presump- relating to the effect of the instruction was not in the instruction the defect tion. Since brought shall not trial court’s we attention, to the regard error. it as reversible

Nothing be taken that have said should we jury on the not be instructed should mean that only against presumption We hold suicide. effect presump not describe the instruction should that jury standing that it has is satisfied until tion as contrary. jury The been overcome presumption sui there is should be told presumption should be ex basis for cide. The against taking human revulsion plained, the normal i.e., proper explain to be life. It would own one’s normally people may do infer that because this instinct self- because of own lives take their not take his own life in preservation, did not the deceased be told the im should it. case before any be treated as other probability is to of suicide evidentiary does fact and that upon special the fact which it is based with endow evidentiary purposes. As in value for stated Jefferson Clemmer, Ins. v. F2d 731 Standard Co. Life permitted (4th jury give 1935), be “the should to Cir weight as the inference such it deems undisturbed best, thought sort the that the inference has some of arti- probative ficial force which must influence their de- goes say: liberation.” The court on to “* * * opposing Likewise to evidence, jury weigh credibility the and should be instructed to its way, finally, upon in usual and

effect whole to evidence, determine whether death bearing accident has in occurred, mind that if the they their evidence leaves minds in such doubt that point, are unable to decide the verdict should party upon per- be whom the burden of charge easily suasion stood a rests. Such can be under- jury justice and enables the to do to both sides.” couching

The evil to be avoided is the instruction language suggesting in stands satisfy unless overcome evidence sufficient to contrary, because an instruction in that proof places form the burden of on the defendant. Defendants contend that error was committed objection sustaining plaintiff’s proof to an offer of psychiatrist, expressed in which Dr. a Shanklin, his opinion respect persons with to the emotional state of committing prior developed by suicide. The evidence plaintiff person tended show that a Powell was well surroundings; adjusted happy to his that he was apparent committing reason for with no suicide. The proof purported to offer show of that suicides some- despondent. person Dr. not is times occur when testified as follows: Shanklin necessarily “They occur in the [suicides] don’t generally, Speaking despondency. depths of your great you will see of retardation other levels begins. improvement peak This as the suicides day pattern, before behavior so that the is the jolly though quite it even is before, week or respects, socially appropriate in all correct, —this deciding whether or not no of moment particular was suicide or accident.” act simply people that some commit statement If this they immediately though preceding even spirit jolly and correct social attitude, manifest testimony inform does not the members they already gen- anything from their know would purporting If the was to tell eral observation. witness person’s jury a that in cases in which condi- the certain improving pattern spite there ais of suicide in tion is appearance jollity, of an outward the statement is sufficiently vague too and not related to Powell’s con- dition. testimony

This court is unable to discern from what phenomenon attempting the witness was scientific particular it the or how relates to in describe death and we do think case, not the was in position to do so. better The trial court refused to proof accept ground offer on the that it dealt province with a matter within and that speculative.” Apparently it “too the trial court testimony interpreted as we do. We hold that there rejecting was no abuse of discretion in the offer of proof. judgment

The is affirmed. concurring. J.,

SLOAN, rehearing petition Hansen opinion in a The Oregon-Wash. 191 P N. Co., 1920, R. & Or v. given challenged me instruction satisfies that the wrong. in the was not concur I, therefore, in this case result. dissenting.

GOODWIN, J., hy- majority opinion attempts a The to construct pothesis death. of accidental I do believe that opinion support any plausible forth in facts set hypothesis anof accident. If circumstantial evi- only prove anything, proved dence tended lying the deceased shot mouth himself while may may his back on bed. He or not have intended solely upon that result. Based in this excluding presumption upon by case, and relied plaintiff, any attempting verdict to decide between pure guess- suicide and accidental death strikes me as work. majority presumption

The holds that there is presumption, suicide. If there is such a then presumption the carry under would, our evidence statutes, plaintiff’s jury. question, case to the I how- ought presumption. whether there to be ever, such Presumptions See Violent Death White, Cases or Presumption?, Quo (1960). Vadis 15 U Miami L Rev 1 generality upon which the so-called justify employment is based is too broad to its as evi- every unexplained an dence in ease of violent death. majority If the view is equally correct, it would be logical employ presumption exactly the in the same way in the case of an hanging. unwitnessed death possibility accidentally that a man The would fashion likely the hang than no less himself is and noose lay at bar in the case

possibility the decedent that accidentally himself. shot his back and down on presump- majority the that however, holds, The operates. view, that I do not tion While concur agree manner in which error in the that there was I jury. explained presumption was the acknowledges majority in a case of this that The proof it is not and that shift, kind the burden of does jury burden is the effect that the error to instruct presumption upon the the defendant to overcome Accordingly, if for no other reason, suicide. entitled to a new trial. Whether defendants are recognizes majority error as or not the error which by exception, properly preserved not did was presumption ma- the effect of the as the understand says accept jority understood. I it should be cannot majority’s reasoning that the error this case not reversible. that was told is evi- plaintiff is entitled to its benefit “the dence, throughout your throughout trial of this case on the facts until such if time, deliberations ever, satisfy may your minds to the sufficient contrary.” upon jury presumably which the

The instruction its deliberations thus shifted to the defend- relied in proving that the the burden deceased inten- ants tionally shifting proof himself. In shot the burden of challenged instruction defendants, denied upon theory major- a trial the defendants says ity is correct. phrase that the defendants did

I concede their learning might exception employed with be reading majority opinion after in this case. I be- that went to error, however, lieve that one controversy, the heart of the matter such an error be noticed should under Rule 46. recognize judge

We all trial was follow- ing law as it had been declared in our former opinions. go saying It should without that in a case re-examining important of this kind when we are an finding implies of law a rule of error no want of learn- ing upon part of the trial court. If we make a sub- change stantial in the rule we likewise should not hold litigant responsible excep- for a failure to state his prophetic insight concerning tion with the rule that emerge upon appeal. will judgment

I would reverse the and remand the cause for a new trial under the law as set forth in the ma- jority opinion. join C. J., J.,

McAllister, Rossman, dissent.

Case Details

Case Name: United States National Bank v. Underwriters at Lloyd's, London

Court Name: Oregon Supreme Court

Date Published: Nov 25, 1964

Citation: 382 P.2d 851

Court Abbreviation: Or.