Lincoln Petroleum Co. v. New York Life Ins.

EVANS, Circuit Judge. Defendant appeals from a judgment based upon a verdict in plaintiff’s favor. The action was predicated on two $10,000 life insurance policies running to plaintiff of which insured had been secretary and treasurer. The chief reliance for reversal was the trial court’s refusal to direct a verdict for defendant,' the motion for which was predicated upon an exception to the general death liability clause. The exception covered the case where án insured met his death through “self destruction” “whether the insured be sane or insane” within two years of the issuance of the policy. Defendant claims that suicide was conclusively shown. Other errors assigned relate to evidence, instructions, and refusal of the court to set aside the verdict. The evidence of eyewitnesses who described the insured’s fall from the fourth floor window, was free from uncertainty or dispute. It and other undisputed evidence disclosed the following situation: Deceased was 36 years of age at the time of his death. He had been married only a few months. His financial condition was good; he received a salary of $2,000 a month. He was a petroleum engineer, a geologist, a university graduate. He was said to be in good health and in good spirits. Also it was said, and we so assume, he was happily married. He was a man of six feet in height, weighing about 180 pounds, and was described as awkward in movement. Concerning his doings on the day he died, the testimony is detailed and uncontradicted. It shows he had been drinking heavily and was intoxicated. He and his wife and several others were to meet, and did meet, at a night club, “Lou’s Rendezvous,” near Mattoon, Illinois, for dinner. Deceased drank more at the bar and returned to his table where he had words with his wife. He was evidently angry because his wife had danced with another guest at the party. He became enraged and threw his steak at her. She left the tavern alone and drove to their cottage, where she took a bag of clothes, and went to a hotel in the town. Her husband left the club with a friend who was “staying” with them and they went to his cottage and to sleep. The wife decided to phone a mutual friend, who got in touch with her husband, and they all met in the friend’s room. There was more drinking there. The wife left and, accompanied by one of the party, went first to a tavern and then to her aforementioned hotel room. On the way they encountered her husband who went with them. The friend urged him to leave his wife until the next morning when they could “talk things over.” The husband said he would leave, but asked to speak to his wife alone for a moment. The friend left, but remained in the vicinity of the hotel. The wife testified that her husband became abusive, slapping her several times, and thereupon she concluded that he was too drunk to reason with, so she decided to scare him. She climbed onto the window sill of her fourth floor room, and in turning, slipped. She grabbed the sill where she clung for a few seconds. Her husband approached her, she says, to aid her, and touched her, but she slipped and [75] fell to the pavement. She lit on her feet, was badly injured, but miraculously escaped death, survived and testified on the trial. Her story of the events immediately preceding deceased’s fall is fully corroborated by the testimony of cab drivers and the friend who accompanied the couple to the hotel.' They not only told of Mrs. Lake’s fall, but told what followed immediately thereafter when insured came through the window and fell to the sidewalk head first and was killed. These witnesses1 were about a block from the hotel when they heard a woman scream, and ran to the scene. They saw the wife on the window sill, and then saw her slip and fall. She lay on the ground, dead or fatally injured, as they believed. One of the drivers said he turned her over to see if she were dead and discovered she was not. Another driver'said he saw the insured leaning out of the window, his chest on the sill, and his head and shoulders extending about a foot past the window. The driver shouted to the insured to get back, but he replied by swearing and added, “Down I come.” The taxi driver shouted át him again, and yelled at the other driver to get out of the way. The various drivers described the deceased’s action as “inching” his way, “edging” his way, over the sill.2 They agree, and there is no dispute from any source, that his reply to their [76] shouted urge to get back was, “Down I come” and “here I come.” Of this significant statement there is neither doubt nor uncertainty. The interim between the wife’s fall and the deceased’s fall was variously estimated as from thirty seconds to three and a half minutes. Both insured and his wife fell on a cement sidewalk beneath the window. Had the taxicab drivers not rolled the wife’s body away, insured would have lit on her. The window was 42 feet 10 inches above the cement sidewalk. A chart of the room and the window showed that there was a radiator a foot wide and 1.5 feet high in front of the window. The sill was 2.9 feet above the floor, and was 1.66 feet thick. The thickness of the building wall does not appear. Plaintiff points to the absence of motive' for committing suicide. Defendant answers by pointing to the fact that the insured had ample motive when he saw his wife’s body on the pavement, he having been the cause of her fall, which appeared to be a death-producing one. Plaintiff, in support of its view that there was sufficient evidence to take the case to the jury, stresses the following: Insured was young, healthy, and happily married; he had abundant financial resources; he and his wife were planning to build a home. Emphasis is placed on the fact that the deceased was intoxicated, and also, even when sober, was very awkward in his movements, so that when he leaned over the window sill to see the results of his wife’s fall, he was leaning too far out and became unbalanced and toppled over. Moreover it is asserted he descended head first, with his arms at his side. One witness states the deceased’s fall occurred but a very few moments after his wife’s, from which it is inferred that he had no time to contemplate his action. On the hard, factual, determinative question, disinterested witnesses testified to facts which are explainable only on the theory of suicide. From the figures disclosed by the chart, and calculations we have made therefrom, it appears that 5.16 3 feet of deceased’s six foot stature was taken in leaning out of the window, without [77] considering the thickness of the building wall, which thickness was not given. This calculation would tally with the taxi drivers’ testimony which was to the effect that deceased’s head extended a foot from the window. Such being the case, the conclusion seems hard to avoid, that deceased, in order to fall, had to pull or push himself up (“edge” or “inch” himself, as the drivers testified) over the window sill in order to “fall” out of the window. Our belief that suicide was the motive and was conclusively established is based on the undisputed fact that deceased had just witnessed the fall of his wife, for which he realized he was to blame and was directly responsible. In the realization of this fact may be found the motive for his suicide. Whether his mind was cleared by the shocking and sobering spectacle he had just witnessed or whether his drunken condition still clogged his mental faculties is immaterial for the exception to insurance liability in each policy covered “self destruction,” “whether sane or insane.” Avoidance of this exception is not shown either by the action of one mentally perplexed to the point of insanity or by the less disturbed but nevertheless highly confused mental state of one who is badly intoxicated. A fair construction of this exception -clause necessitates a reasonable application to facts. Courts are not justi-. fied in holding that it applies to self-destruction by one who is insane, but does not cover self-destruction by one who is drunk, but whose drunken mental. state does not reach the point of alcoholic insanity. We cannot, of course, view the record as a trier of fact. We are reviewing the action of the triers of fact. All reasonable inferences and the weight to be given them, we must and do accord to the plaintiff, for the jury doubtless so found in reaching its verdict. There remains the question, — Was there proof sufficient to support a finding that insured’s death was not occasioned by self-destruction? In other words has defendant conclusiveLy shown that death was due to self-destruction? We think it has. What insured said to the men on the ground as he edged himself out leaves us free from doubt. His action alone might have left us a little less certain. But his action was accompanied by his words. The drunken man was sobered by the realization that he had caused his wife to fall from the window to what he believed was certain death. He looked out the window and there on the sidewalk he saw her limp and apparently lifeless form. Remorse impelled him to meet his responsibility then and there. He must have realized he would be crushed on the pavement should he fall head foremost, but he pulled himself up and out the window. To the frantic appeals of the men on the street he replied twice, “Down I come.” No doubt about his words — or their meaning. He came down, head first, from the fourth floor window to the cement walk. In so doing, he met his death. It was “self-destruction.” An impartial appraisal of his act and deed makes it impossible for us to conclude otherwise. His action in pushing himself head first to a fall which of necessity would be fatal is too clear to permit a contrary finding to stand. His spoken words and his accompanying action negative any rational theory of accident. They evidence conscious and understanding appreciation of his contemplated action. They impel us to but one rational conclusion — self-destruction. Cases arising out of suicide clauses in insurance policies might be cited without end. We content ourselves with but one, which was twice before this court, Travelers Ins. Co. v. Miller, 7 Cir., 62 F.2d 910; Miller v. Travelers Ins. Co., 7 Cir., 80 F.2d 503. The judgment is reversed, with direction to grant a new trial. Footnotes [1] Taxi Driver Isbel. “Q. Now, Mr. Isbel, did you observe anj'thing else 'there after this woman come through the window and fell on the sidewalk?' A. Yes, there was a man leaning out of the window. “Q. Which window? A. The same window. “Q. Describe his position in that window? A. He was leaning out as though he was raising his body — on his chest, and he had his arms bent bach. “Q. Holding on the windowsill! A. Yes, sir. “Q. What was he doing? A. He seemed to be edging himself across the sill. “Q. Toward the outside of the window? A. The upper part of his body, from about here up, was sticking out the window, and looking down. “Q. Now, how long after Mrs. Lake came through the window, was it that you saw this man edge his way across the sill? A. Long enough for me to holler that ‘this woman isn’t dead; get an ambulance’ and I looked up and saw him and I yelled ‘For Christ’s sake, get back in there’ and he leaned out and made some smutty remark; I said ‘for Christ’s sake, get back in there’ and he just kept looking down; I repeated again — I said ‘get back in there’ and he said ‘f — h you, down I come’. “Q. And did he come through the window? A. Absolutely, right on his head. As he came out, his left foot, I think it was, caught that screen and pulled it down. “Q. Now, how long an interval of time was there between the time that Mrs. Lake came down, and this man came down? A. In my estimation, it must have been two minutes — right at that. “Q. There was an appreciable period of time between the two? A. There was. “Q. Was Mrs. Lake’s body already on the sidewalk when you saw Lake with his chest on the sill? A. Oh, yes. “Q. Of course, you were somewhat excited and yelling and in a hurry, weren’t you? A. I was very excited, but I don’t believe there was any hurry, because I was trying to persuade him to get back in the window. “Q. You called to him just as you saw him coming out? A. I called to him twice. “Q. When you first saw him, how far out the window was he? A. Just barely his shoulders and head out. “Q. Were his head and shoulders out of the window at that time? A. At that time where you could see them. “Q. That is the first time you saw him and he had his head and shoulders out the window? A. Yes, sir. “Q. Could you see his hands? A. No, sir. “Q. You don’t know whether he was holding on or not? A. No. “Q. You don’t know what he was doing? A. He was standing up there and hollering down a few times. “Q. Calling? A. It sounded like he said ‘Maxine’ three times. “Q. When lie called her name, did he have his head and shoulders out of the window? A. Yes, leaning over, to look down. “Q. Leaning over and looking down? A. Yes, in about the position you would be in a window upstairs.” [2] Taxi Driver Leonard. “Q. Then, Mr. Leonard, after she struck the pavement, what did you next see or hear? A. I heard the voice of one of the boys who had run down there, holler for him to stay up there. “Q. What, boys? A. The driver, Mr. Isbel, and the other boy — I just can’t call his name. [76] “Q. Mr. Lineberry? A. Yes, sir. “Q. What did you bear them say? A. ‘Stay up there for God’s sake,’ or ‘for God’s sake, stay up there’; * * * “Q. Was somebody in the window when they said that? A. Somebody voas leaning out the window. “Q. Was it a man or a woman? A. Apparently, it would be a man. “Q. How much of his body could you see? A. Wot much; his shoulders and head. “Q. Did he reply anything to what was said to him? A. I was so far away, I could not be positive of the words he said, any more than ‘here I come.’ “Q. You heard him say that? Did you know he said something else? A. Something else was said but I would not be positive of it, before that, but everything was confusion. “Q. That something else, was something said by him? A. Yes, sir. “Q. As you saw him there, with his shoulders in the window, just describe what his position was, when you first saw him. A. It seemed as though, to me, from where I was and at that distance, he was edging his way over the ledge of the window, preparing to come down. “Q. Did you see his hands? A. No, I could not see his hands. “Q. He did come down, did he? A. Yes, sir. “Q. How did he come down? A. He came down, head first. “Q. He struck on the sidewalk below the hotel room? A. Yes, sir. “Q. And he just gradually came out the window? A. That is right, yes. “Q. When he fell,' he lit on his head? A. Yes, sir. “Q. And you think it wasn’t over a minute from the time you first saw him until he fell? A. From the time I first saw him until he came out the window, it could not be much over a minute. He no more got through calling her name than he started down. “Q. I don’t understand you. A. At the time he stopped calling the name ‘Maccine,’ he started inching himself out the window. “Q. And he called that name two or three times? A. Yes, sir. “Q. Just the name ‘Maxine’? A. Yes, sir. If he said anything more than that, I didn’t hear it.”