Sharland v. Washington Life Ins.

After stating the case as above, PABDEE, Circuit Judge, delivered the opinion of the court. The coroner’s inquest, made a part of the proofs of death as presented by the plaintiff to tlie defendant: company, was admissible in evidence. Insurance Co. v. Newton, 22 Wall. 32, 22 L. Ed. 793; Insurance Co. v. Higginbotham, 95 U. S. 380, 24 L. Ed. 499; Richelieu Nav. Co. v. Boston Ins. Co., 136 U. S. 435, 10 Sup. Ct. 934, 34 L. Ed. 398. See, also, Association v. Sargent, 142 U. S. 691, 12 Sup. Ct. 332, 35 L. Ed. 1160; Steamship Co. v. Tugman, 143 U. S. 31, 12 Sup. Ct. 361, 27 L. Ed. 87; Crotty v. Insurance Co., 144 U. S. 621, 626, 12 Sup. Ct. 749, 36 L. Ed. 566. In Insurance Co. v. Newton, supra, the second lieadnote fairly states what was decided, and is as follows: “(2) The preliminary proofs presented to an insurance company, in compliance with the condition of its policy of insurance, are admissible as prima facie evidence of the facts stated therein against the insured and on behalf of the company.” [212] In Insurance Co. v. Higginbotham, supra, we find: “The effect of facts set forth in preliminary proof as admissions is discussed in Insurance Co. v. Newton, 22 Wall. 32, 22 L. Ed. 703. Where an agent of the insurance company stated that the proofs were sufficient to show the death of the insured, but that they showed that he committed suicide, it was held that the whole admission must be taken together. Where the party or her agent stated in the preliminary proofs that the deceased had committed suicide, furnishing the verdict of a coroner’s jury to that effect, and where the narration of the manner of the death of the deceased was so interwoven with the death of the deceased that the two things were inseparable, it was held that the whole was competent to go> before the jury. We see no occasion to question the positions of that case.” In Richelieu Nav. Co. v. Boston Ins. Co., supra, a maritime protest, consisting of statements signed by the master, mates, and wheel-men, against storm, heavy winds, and gales, high and dangerous seas, fogs, and defective compass, etc., was held admissible in a suit on an insurance policy, and the court says: “But it was admissible in this case, not on the ground of agency, but because it was made part of the proofs of loss; being directly referred to in the proofs in the statement that the vessel ran ashore, ‘and became a wreck and total loss, and was duly abandoned by the owners to her insurers, as will appear by certified copy of the protest of her master and mariners, heretofore served upon you.’ Hence the admission of the proofs of loss involved the admission of the explanatory writing.” In Association v. Sargent, supra, proofs of death containing the statement of the coroner’s physician, which tended to show suicide, were admitted, and one of the questions passed upon was whether such proofs did not estop the plaintiff from proving the contrary, and it was held (Mr. Justice Brown dissenting) that the proofs of death, as furnished in that case, were not conclusive, but no question whatever was made or suggested as to the propriety of their being admitted in evidence as an entirety. . These authorities are conclusive in this court, and it is needless to review the decisions of the various state courts on the same subject. The contents of certain letters, which were found in the room of the deceased, Ernest Sharland, at the time his body was there discovered, and an envelope of the police department of the city of New York in which the letters were subsequently put, and two pieces of paper containing writings in the hand of the deceased, were admitted in evidence over the objections of the plaintiff. The issue in the case was whether the assured committed suicide. From undisputed facts, it appears he was found dead in his bed at about 4 o’clock in the afternoon on November 9, 1897, in his room at 509 Fifth avenue, New York; that he died from asphyxiation by illuminating gas; that when his room door was forced it was found that the two gas cocks in the room were both turned on; that the rugs which were in the room had been piled against the door, evidently for the purpose of preventing egress of gas and ingress of air; that the assured was lying upon the bed dressed in a suit of pajamas, in the pocket of which was a picture of his child; that on the dressing table, opposite the bed, was a photograph of his wife, which had written upon it, “My Wife,” and her full name and address; that on this dressing table there was also a letter from his wife, [213] written in French; and that on the bureau were found two papers in the handwriting of the deceased, one an unfinished letter of farewell to his child, dated November 8, 1897, and the other was a request to send for a Mr. Bernard at a given address, and to mail the sealed letters, which were also on the bureau. It is admitted that the letter from his wife was written in response to a previous letter from him threatening suicide. The contents of the letter and the documents in the handwriting of the deceased tended to show that the assured was intending to commit suicide. The envelope of the police department of the city of New York, mentioned, was evidently offered as part of the identification of the documents. Bearing in mind that the issue was whether the assured committed suicide, we are of opinion that the evidence was properly admitted. . Counsel for plaintiff in error argues that, as the letters and documents were not made at the time of the act done, they constituted no part of the res gestse, and1 were therefore inadmissible. It would seem that the papers written by tbe assured and the letters found in his close possession, shortly before and at the time of his death, would be the very best evidence to show the condition of his mind and the acts which he was then contemplating. Exactly what constitutes the res gestai in a case of This kind need not be determined. Whatever throws light upon the motives and intentions of the assured, found dead under such circumstances, seems clearly admissible. In regard to the instructions to the jury asked and refused by the court, we notice the first complaint is that the court refused a charge instructing the jury that, as the defense to the suit on the policies was suicide, the burden was on the defendant to establish the fact of such willful and intentional suicide by evidence which would exclude with reasonable certainty any other hypothesis of the cause of death than by such willful and intentional suicide. In the first place, it is to be noticed that the agreement in the policies was not limited to willful or intentional suicide, but included self-destruction while sane or insane. The court, while refusing the charge as requested, charged the jury as follows: “The plaintiff in this case has the burden on herself of showing the contract under the policies and the death of the deceased. That much has been shown, and as a matter of fact been admitted by the defendant. The case of the piainüff would be made out by that showing and admission, but for the denials in the defenses set up by the defendant. The defendant, admitting the death and admitting the obligation under the contract, sets up as a special defense that the contract is not enforceable in this case, because the insured, Sharland, committed suicide in the city of New York. Under the terms of this policy, this defense is good, if sustained by the proof. On that defense the defendant has the burden of proof. The defendant is required to make out its case on that defense by a preponderance of proof; that is, to make you, by its proof, or the proof in the case, believe that its defense has been established with a reasonable degree of certainty.” This covered the case, and was correct. See Association v. Sargent, supra; Insurance Co. v. McConkey, 127 U. S. 661, 8 Sup. Ct. 1360, 32 L. Ed. 308. The next complaint as to the charge is that the court refused to charge the jury as follows: [214] “If you find that the body of the deceased was found under such circumstances that death may have resulted from negligence, accident, murder, or suicide, the presumption is against suicide, as contrary to the general conduct of mankind, and gross moral turpitude not to be presumed in a sane man.” While refusing this precise charge, the court gave the following: “If you find that the body of the deceased was found under such circumstances that death, so far as the evidence shows the cause thereof, may have resulted as reasonably from negligence, accident, murder, or suicide, the presumption is against suicide, because-suicide is contrary to the general conduct of mankind.” It seems that the court charged the jury that the presumption of law was against suicide, hut refused to give the reasons for such presumption, precisely as requested by the plaintiff. In this we think there was no error. As the court charged the jury that the presumption of law was against suicide, it was sufficient. The trial judge was not bound to give all, if any, of the reasons upon which the presumption of law is based. The plaintiff in error relies upon Insurance Co. v. McConkey, supra, but that case does not support the contention. While, in the opinion of the court, the charge approved in Mallory v. Insurance Co., 47 N. Y. 54, was recited and approved, in the case then actually under consideration the court approved the following, which was this charge, to wit: “It is manifest that self-destruction cannot be presumed. So strong is the instinctive love of life in the human breast, and so uniform the efforts of men to preserve their existence, that suicide cannot be presumed. The plaintiff is therefore entitled to recover unless the defendant has, by competent evidence, overcome this presumption, and satisfied the jury, by a preponderance of evidence, that thé" injuries which caused the death of the insured were intentional on his part.” A close examination of the bill of exceptions will show that the plaintiff in error, otherwise than by excepting to the refusal of requested charges, did not except to any of the charges actually given by the court, except the following, to wit: “I wish to call your minds back to this fact, after weighing the evidence offered by the defendant on the- issue of suicide vel non, if you find that the defendant has established its defense by a preponderance of evidence, preponderating in favor'of the side of the defendant, you will find for the defendant, bearing in mind the other modifications I have given you in the charges.” The objection to this charge, as given in the argument and brief, is that thereby the judge unduly impressed upon the minds of the jury that it was only necessary for the defendant to establish suicide by a preponderance of evidence, and so much so that it is difficult to avoid believing that the jury clearly saw that to the mind of the judge suicide had been .established by the preponderance of evidence, and that, therefore, the verdict should be for the defendant. As, in our opinion, the trial judge was correct in charging the jury that the defendant was only called upon to establish the suicide of the assured with reasonable certainty by a preponderance of evidence; and as the uncontradicted evidence in the case clearly pointed to suicide as the cause of Ernest Bharland’s death, — which cause was, however, left to the jury to find, — we, are unable to hold that the. language .of the trial judge in his presumably closing charge to the jury was reversible error. - . [215] Counsel for defendant in error contend with much force that, under the evidence adduced on the trial, the judge should have directed a verdict in favor of the defendant, and it is therefore immaterial whether any errors were committed in the charge to the jury. The evidence found in the transcript apparently excludes with reasonable certainty any other hypothesis than that of suicide, but we find no certificate or admission that all of the evidence offered in the case is included in the bills of exception. The judgment of the circuit court is affirmed.