HICKENLOOPER, District Judge.
This is an action upon a policy of life insurance containing provision for double indemnity in the event that the “death of the insured resulted directly and independently of all other causes from bodily injury effected solely through external, violent and accidental cause,” The insured met his death on the morning of July 7,1926, when his automobile left the road and ran over the steep bank of a canal, adjacent the point where the Mifllin road crosses the canal by a steel bridge. Oilier pertinent facts are stated in the opinion of this court in International Life Ins. Co. v. Carrol et al. (C. C. A.) 17 F.(2d) 42, 50 A. L. R. 302.
The insurance company admitted liability for the face of the policy, but contested the accidental nature of the injury, alleging that the death of the insured was self-inflicted, or the result of suicide. The plaintiff introduced evidence tending to prove purely accidental cause of the injury, and evidence was introduced on behalf of defendant below, tending to prove motive for suicide. There were no eyewitnesses. The case went to the jury, and resulted in verdict and judgment for the amount of the double indemnity claimed.
Claim of error is predicated upon the refusal of the court below to require production of a letter addressed by the insured to his wife and found with his will after his death. This letter was held inadmissible, under section 5596 of Shannon’s Code of Tennessee, which provides that “neither husband nor wife shall testify as to any matter that occurred between them by virtue of or in consequence of the marital relation.” This language is somewhat unique; but we cannot believe other wise than that it was the infention of the Legislature; in the interest of a broad public policy, to make privileged all confidential communications between husband and wife, or such as were founded upon or were made in consequence of the marital relation. The incompetency thus arising continues after the marital relation has been terminated by death or otherwise (Patton v. Wilson, 2 Lea [70 Tenn.] 101, 112), and a document addressed by a husband to his wi fe, which relates to personal, family, and eoniidential matters between husband and wife, and which, as is here in evidence, has no relation whatever to the issues in suit, but is written in recognition of the uncertainty of life and to bo delivered after death, would seem to fall within both the spirit and the letter of the statute.
The chief contention of error is that the [82]*82court erred in charging the jury that, before the plaintiff could recover, she must show that the death resulted from accidental means, that is, that it was an accident, as distinguished from intentional and purposeful death; that where the facts and circumstances leave it doubtful or questionable whether death was caused by accident or suicide, and the probability that it was caused one way is about as much as the other, then the law presumes that the death happened as the result of an accident, and such presumption of law comes to the aid of the plaintiff in establishing his or her ease by a preponderance of evidence; that where this presumption of accidental death is brought into play, and is given effect by the jury, the burden of proof shifts to the defendant, and it is made incumbent upon the defendant to establish by a preponderance of evidence that the deceased lost his life as a result of self-destruction; and that the presumption of accident stands as proof until it is overturned by evidence to the contrary.
This, we think, is a fair statement of the charge, so far as the question of error therein is now available to the plaintiff in error by reason of specific exceptions. “Exceptions to a charge must be specifically made in order to give the court opportunity then and there to' correct errors and omissions, if any.” Burns v. United States, 274 U. S. 328, 336, 47 S. Ct. 650, 653 (71 L. Ed. 1077). Construed as a whole, and taken in connection with the evidence in the case, the charge could have left no doubt in the minds of any of the jurors that the sole issue was whether death was accidental or suicidal. The only questions here are whether the court erred in charging that the burden of proof shifted to the defendant and the presumption remained throughout in aid of the plaintiff’s case or until overcome by a preponderance of evidence.
As regards established principles of general application this charge is open.to objection for want of accuracy. A presumption is not evidentiary in its nature, and the burden of proof, in its usual and primary meaning as the risk of nonpersuasion of the jury, never shifts, but remains with the affirmative throughout the ease. A presumption is a rule of law, attaching to a given state of evidentiary facts certain procedural consequences as to the duty of the production of other evidence by the opponent. The “effect of a presumption of law (that is, the real presumption) is merely to invoke a rule of law compelling the jury to reach the conclusion in the absence of evidence to the contrary from the opponent.” Wigmore on Evidence (2d Ed.) § 2491. The “fallacy” of the Supreme Court in considering a presumption as a matter of evidence, in the case of Coffin v. U. S., 156 U. S. 432, 459, 15 S. Ct. 394, 39 L. Ed. 481 et seq., is now generally rejected, even by the Supreme Court. See Wigmore on Evidence, §§ 2491 and 2511 (notes 4, 5 and 6); Agnew v. U. S., 165 U. S. 36, 17 S. Ct. 235, 41 L. Ed. 624; Holt v. U. S., 218 U. S. 245, 253, 31 S. Ct. 2, 54 L. Ed. 1021, 20 Ann. Cas. 1138.
The presumption is founded upon the then state of the proof.' It is always procedural. Thus, where the circumstances in evidence clearly and irrestibly lead to the conclusion of suicide, no presumption that the death was accidental arises. The plaintiff’s ease can receive no support therefrom. Supreme Tent of Knights of Maccabees v. King, 142 F. 678 (C. C. A. 6); N. Y. Life Ins. Co. v. Bradshaw, 2 F.(2d) 457 (C. C. A. 5); N. Y. life Ins. Co. v. Weaver, 8 F.(2d) 680 (C. C. A. 5).; Von Crome v. Travelers’ Ins. Co., 11 F. (2d) 350 (C. C. A. 8); Planters Bank v. N. Y. Life Ins. Co., 11 F.(2d) 602 (C. C. A. 5). Compare Connally. v. L. & N. R. R. Co., 4 F.(2d) 539 (C. C. A. 5); Scharlach v. Pac. Mut. Life Ins. Co., 16 F.(2d) 245 (C. C. A. 5); C., M. & St. P. Ry. Co. v. Coogan, 271 U. S. 472, 478, 46 S. Ct. 564, 70 L. Ed. 1041. But as the court here charged the jury, where the facts and eirtíumstances (clearly meaning the physical facts and surrounding circumstances) leave in doubt the question whether the death was by accident or suicide, then a presumption that it was accidental, founded upon observations of human nature and life as a whole, does arise. The effect of this presumption is merely that the plaintiff must recover, in the absence of evidence to the contrary, from the opponent.
This presumption, as such, would not survive the introduction of evidence tending to prove suicide or even motive for suicide. Thereafter it .would have no place in the reasoning as a- presumption (Brunswick v. Standard Accident Ins. Co., 278 Mo. 154,173, 213 S. W. 45, 7 A. L. R. 1213; Von Crome v. Travelers Ins. Co. (C. C.
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HICKENLOOPER, District Judge.
This is an action upon a policy of life insurance containing provision for double indemnity in the event that the “death of the insured resulted directly and independently of all other causes from bodily injury effected solely through external, violent and accidental cause,” The insured met his death on the morning of July 7,1926, when his automobile left the road and ran over the steep bank of a canal, adjacent the point where the Mifllin road crosses the canal by a steel bridge. Oilier pertinent facts are stated in the opinion of this court in International Life Ins. Co. v. Carrol et al. (C. C. A.) 17 F.(2d) 42, 50 A. L. R. 302.
The insurance company admitted liability for the face of the policy, but contested the accidental nature of the injury, alleging that the death of the insured was self-inflicted, or the result of suicide. The plaintiff introduced evidence tending to prove purely accidental cause of the injury, and evidence was introduced on behalf of defendant below, tending to prove motive for suicide. There were no eyewitnesses. The case went to the jury, and resulted in verdict and judgment for the amount of the double indemnity claimed.
Claim of error is predicated upon the refusal of the court below to require production of a letter addressed by the insured to his wife and found with his will after his death. This letter was held inadmissible, under section 5596 of Shannon’s Code of Tennessee, which provides that “neither husband nor wife shall testify as to any matter that occurred between them by virtue of or in consequence of the marital relation.” This language is somewhat unique; but we cannot believe other wise than that it was the infention of the Legislature; in the interest of a broad public policy, to make privileged all confidential communications between husband and wife, or such as were founded upon or were made in consequence of the marital relation. The incompetency thus arising continues after the marital relation has been terminated by death or otherwise (Patton v. Wilson, 2 Lea [70 Tenn.] 101, 112), and a document addressed by a husband to his wi fe, which relates to personal, family, and eoniidential matters between husband and wife, and which, as is here in evidence, has no relation whatever to the issues in suit, but is written in recognition of the uncertainty of life and to bo delivered after death, would seem to fall within both the spirit and the letter of the statute.
The chief contention of error is that the [82]*82court erred in charging the jury that, before the plaintiff could recover, she must show that the death resulted from accidental means, that is, that it was an accident, as distinguished from intentional and purposeful death; that where the facts and circumstances leave it doubtful or questionable whether death was caused by accident or suicide, and the probability that it was caused one way is about as much as the other, then the law presumes that the death happened as the result of an accident, and such presumption of law comes to the aid of the plaintiff in establishing his or her ease by a preponderance of evidence; that where this presumption of accidental death is brought into play, and is given effect by the jury, the burden of proof shifts to the defendant, and it is made incumbent upon the defendant to establish by a preponderance of evidence that the deceased lost his life as a result of self-destruction; and that the presumption of accident stands as proof until it is overturned by evidence to the contrary.
This, we think, is a fair statement of the charge, so far as the question of error therein is now available to the plaintiff in error by reason of specific exceptions. “Exceptions to a charge must be specifically made in order to give the court opportunity then and there to' correct errors and omissions, if any.” Burns v. United States, 274 U. S. 328, 336, 47 S. Ct. 650, 653 (71 L. Ed. 1077). Construed as a whole, and taken in connection with the evidence in the case, the charge could have left no doubt in the minds of any of the jurors that the sole issue was whether death was accidental or suicidal. The only questions here are whether the court erred in charging that the burden of proof shifted to the defendant and the presumption remained throughout in aid of the plaintiff’s case or until overcome by a preponderance of evidence.
As regards established principles of general application this charge is open.to objection for want of accuracy. A presumption is not evidentiary in its nature, and the burden of proof, in its usual and primary meaning as the risk of nonpersuasion of the jury, never shifts, but remains with the affirmative throughout the ease. A presumption is a rule of law, attaching to a given state of evidentiary facts certain procedural consequences as to the duty of the production of other evidence by the opponent. The “effect of a presumption of law (that is, the real presumption) is merely to invoke a rule of law compelling the jury to reach the conclusion in the absence of evidence to the contrary from the opponent.” Wigmore on Evidence (2d Ed.) § 2491. The “fallacy” of the Supreme Court in considering a presumption as a matter of evidence, in the case of Coffin v. U. S., 156 U. S. 432, 459, 15 S. Ct. 394, 39 L. Ed. 481 et seq., is now generally rejected, even by the Supreme Court. See Wigmore on Evidence, §§ 2491 and 2511 (notes 4, 5 and 6); Agnew v. U. S., 165 U. S. 36, 17 S. Ct. 235, 41 L. Ed. 624; Holt v. U. S., 218 U. S. 245, 253, 31 S. Ct. 2, 54 L. Ed. 1021, 20 Ann. Cas. 1138.
The presumption is founded upon the then state of the proof.' It is always procedural. Thus, where the circumstances in evidence clearly and irrestibly lead to the conclusion of suicide, no presumption that the death was accidental arises. The plaintiff’s ease can receive no support therefrom. Supreme Tent of Knights of Maccabees v. King, 142 F. 678 (C. C. A. 6); N. Y. Life Ins. Co. v. Bradshaw, 2 F.(2d) 457 (C. C. A. 5); N. Y. life Ins. Co. v. Weaver, 8 F.(2d) 680 (C. C. A. 5).; Von Crome v. Travelers’ Ins. Co., 11 F. (2d) 350 (C. C. A. 8); Planters Bank v. N. Y. Life Ins. Co., 11 F.(2d) 602 (C. C. A. 5). Compare Connally. v. L. & N. R. R. Co., 4 F.(2d) 539 (C. C. A. 5); Scharlach v. Pac. Mut. Life Ins. Co., 16 F.(2d) 245 (C. C. A. 5); C., M. & St. P. Ry. Co. v. Coogan, 271 U. S. 472, 478, 46 S. Ct. 564, 70 L. Ed. 1041. But as the court here charged the jury, where the facts and eirtíumstances (clearly meaning the physical facts and surrounding circumstances) leave in doubt the question whether the death was by accident or suicide, then a presumption that it was accidental, founded upon observations of human nature and life as a whole, does arise. The effect of this presumption is merely that the plaintiff must recover, in the absence of evidence to the contrary, from the opponent.
This presumption, as such, would not survive the introduction of evidence tending to prove suicide or even motive for suicide. Thereafter it .would have no place in the reasoning as a- presumption (Brunswick v. Standard Accident Ins. Co., 278 Mo. 154,173, 213 S. W. 45, 7 A. L. R. 1213; Von Crome v. Travelers Ins. Co. (C. C. A.) 11 F.(2d) 350); but, as a legitimate inference from human life, the effect would continue. This inference is sometimes loosely denominated a presumption. In nature it is as truly evidentiary as the true presumption is procedural. In practical application of these rules, and for the proper understanding of the jury, it would seem merely a question of words — a method of phrasing, the established rule— [83]*83whether the court charges the jury that the presumption continues after evidence to rebut it has been introduced, but is rebuttable, or whether the jury be charged that the presumption is destroyed but a natural and legitimate inference arises from the evidence, or lack of evidence, to be given such probative effect as the jury deems proper in determining the issue.
While every presumption in favor of plaintiff results in a shifting of the burden of proof in its secondary sense of the duty of producing evidence tending to rehut the presumption, or else suffer a verdict against defendant, it is clear that the charge of the court below had no reference to this secondary meaning of burden, of proof- Under the charge, once the presumption has attached and been given effect by the jury, the burden was thrown upon the defendant, not only of going forward with evidence, but of actually overcoming such presumption by a preponderance of the evidence. As we have stated, this is contrary to the well-established doctrines of presumption and burden of proof, and can be justified, if at all, by a consideration of decisions binding upon the court below upon this precise question.
In the ease of Travelers’ Ins. Co. v. McConkey, 127 U. S. 661, 8 S. Ct. 1360, 32 L. Ed. 308, the action was brought upon a policy of accident insurance containing almost identical provisions with the accident provisions of the policy here in suit. At the trial the court charged the jury that the burden of proving death by suicide by a preponderance, of the evidence rested upon the defendant, that the presumption was that death was not voluntary, and that the defendant, in order to sustain the issue of suicide upon its part, must overcome this presumption and satisfy the jury that the death was voluntary. That charge, as applicable to a- ease of this kind, was unequivocally approved by the Supreme Court, the court saying: “Did the court err in saying to the jury that, upon the issue as to suicide, the law was for the plaintiff, unless that presumption was overcome by competent evidence? This question must be answered in the negative.”
Later this court applied the doctrino of the McConkey Case in Standard Life & Accident Ins. Co. v. Thornton (C. C. A.) 100 F. 582, 49 L. R. A. 116. This latter ease was also an action upon an accident policy. The insured met death by either jumping or being thrown from a moving train. The sole issue, as here, was whether this violent death was accidental or suicidal. There was some evidence of charges which the deceased considered detrimental to his character, and of lack of employment and despondency. It was there urged that the court erred in charging the jury that the burden of proof was upon the defendant to establish by a preponderance o f the testimony that the decedent came to his death with suicidal intent. Judge Day (later Mr. Justice Day), in rendering the opinion of this court, approved the presumption against suicide and said: “This presumption must stand in the ease, and be decisive of it, until overcome by testimony which shall outweigh the presumption. It easts upon the defendant who claims that the death was intentional the burden of establishing it by a preponderance of testimony.”
Similar doctrines have been announced and applied by the Circuit Courts of Appeals of other circuits in cases where the facts and circumstances attending the death were consistent with accident or could reasonably be reconciled with the hypothesis of accidental cause. Parrish v. Order of United Commercial Travelers, 232 F. 425 (C. C. A. 4); Tabor v. Mutual Life Ins. Co., 13 F.(2d) 765 (C. C. A. 4); Mutual Life Ins. Co. v. Hatten, 17 F.(2d) 889 (C. C. A. 8). Compare Fidelity & Casualty Co. of N. Y. v. Love, 111 F. 773 (C. C. A. 5); U. S. Fidelity & Guaranty Co. v. Blum, 270 F. 946 (C. C. A. 9).
The charge to the jury in the court below was quite manifestly carefully prepared with these authorities in mind. So far as we are advised, the McConkey Case has never been criticized in the Supreme Court, and the Thornton Caso has not been qualified nor overruled in this circuit. The former is binding upon this court, and both were binding upon the District Court. The doctrine announced in both thus becomes the law of all cases presenting the identical question. The situation is a most appropriate one for application of the doctrine of stare decisis. If this doctrine means, as was said in The Madrid (C. C.) 40 F. 677, 679, “that when a point has been once settled by judicial decision it forms a precedent for the guidance of courts in similar cases,” precedents which cannot be distinguished should be followed until modified or overruled, and the interests of uniformity, certainty, and stability in the law thus promoted. Certainty of a rule is often of equal importance with theoretical accuracy. Myers, Treas., v. Rose Institute, 92 Ohio St. 238, 249, 110 N. E. 929; White v. Denman et al., 1 Ohio St. 110,115.
We are unable to satisfactorily distinguish the case of Travelers’ Ins. Co. v. McConkey in the Supreme Court, or more espe[84]*84eially Standard life, etc., Co. v.. Thornton, in this circuit, from the present action, and although, except for these eases, the charge would not seem to us properly to apply the abstract principle of law, we cannot say that the court erred in following the doctrine announced by these decisions.
The judgment must therefore be affirmed.