DENMAN, Circuit Judge.
This is the third appeal in this case, and the issues of fact involved have been sufficiently stated in our former opinions. Gamer v. New York Life Ins. Co., 9 Cir., 76 F.2d 543; New York Life Ins. Co. v. Gamer, 9 Cir., 90 F.2d 817. There is new evidence for insurer concerning the character of the bullet and its angle of emersion from the back of Gamer’s skull, and for the insured concerning his business activity shortly before his death. Each party moved for an instructed verdict. There is no such overwhelming preponderance of evidence for either party as requires our holding error the refusals of the trial court to instruct a verdict for either.
[376]*376In the trial which produced,the judgment from which the second appeal was taken it appeared that the plaintiff, executrix of decedent’s will, had produced evidence in support of the issue of accidental death tendered hy ‘her complaint that the death of deceased was caused by a gunshot in the head. The trial court instructed the jury that in this situation the presumption against suicide shifted the burden of proof to the insurance company, and that it must establish the insured’s suicide by a preponderance of the evidence. On-appeal we sustained the instruction, our entire opinion resting upon the decision in Travellers’ Ins. Co. v. McConkey, 127 U.S. 661, 664, 666, 8 S.Ct. 1360, 32 L.Ed. 308, et seq., which, we assumed, established the law as above stated. We intimated a doubt as to whether that case correctly stated the law, but felt bound by it. Though it lurked in the case, there was no consideration or mention of thp effect of the then existing body of statutory law of Montana on presumptions with reference to the quantum of evidence necessary to overcome them, bringing the case within Burns Mortg. Co. v. Fried, 292 U.S. 487, 493, 495, 54 S.Ct. 813, 78 L.Ed. 1380.
On this second appeal the Supreme Court granted certiorari and reversed, holding that we erred as to the quantum of evidence required to overcome a ■ rebuttable presumption; that such a presumption is not evidence; that it does not shift to the defendant the burden of proof on the issue it supports; that it does not require a preponderance of the evidence to overcome it; that the effect of the presumption here against suicide is merely to require the defendant to go forward and produce sufficient evidence to support a finding of suicide; and that when the defendant has produced that amount of evidence, the presumption against suicide disappears even though there is other strong evidence of accidental death.
The insurance company claims this holding of the Supreme Court is the law of the case. If it be, the company is correct in' its contention that it has been violated in an instruction, later stated, concerning a presumption as affecting the issue of suicide, in which the court not only failed to advise the jury that it would disappear if there were introduced evidence sufficient to support a finding of suicide, but ascribed an effect to the presumption strongly supporting plaintiff’s contention of accidental death.
However, this issue of law presented by appellant in this regard differs from that on the last appeal. Here the present challenged instruction concerning the effect of the presumption is cast in the terms of 'the statutory law of Montana which in exact words is incorporated in it. Its validity does not concern the general nonstatutory law of the state as declared by its courts. For the reasons now stated, we do not agree with appellant’s contention that the rule stated in the Supreme Court’s opinion is the law of the case with reference to this new issue of law as to the validity of the instruction.
In our opinion in the second appeal we treated the case, under the rule in Swift v. Tyson, 16 Pet. 1, 10 L.Ed. 865, as one where, in the absence of controlling state statutes, the federal courts have the power to determine the law of a state, though its determination may differ from that of the courts of that state. Not only was no state statute considered in the opinion, but no decision of any of the Montana courts. We assumed that we were controlled by what sometimes has been called the federal common law. The fact that all the federal courts have judicial knowledge of the Montana statutes, made the question one that could and should have been decided in accordance with that law, but that was not done. “Questions which merely lurk in the record, neither brought to the attention of the court nor ruled upon, are not to be considered as having been so decided as to constitute precedents. See New v. Oklahoma, 195 U.S. 252, 256, 25 S.Ct. 68, 49 L.Ed. 182; Tefft, Weller & Co. v. Munsuri, 222 U.S. 114, 119, 32 S.Ct. 67,. 56 L.Ed. 118; United States v. More, 3 Cranch 159, 172, 2 L.Ed. 397; The Edward, 1 Wheat. 261, 275, 276, 4 L.Ed. 86. * * * ” Webster v. Fall, 266 U.S. 507,. 511, 45 S.Ct. 148, 149, 69 L.Ed. 411.
The opinion of the Supreme Court assumed, as did ours, that there were no. statutes of the State of Montana determining the effect of a rebuttable presumption. In its citation of authority it mentions but one Montana case concerning; the quantum of evidence necessary to. overcome a rebuttable presumption, in. which no reference is made to the statutory law of that state in that regard-There was a dissent by Mr. Justice Black [377]*377in which there is no mention of any of these Montana statutes. New York Life Ins. Co. v. Gamer, 303 U.S. 161, 58 S.Ct. 500, 82 L.Ed. 726, 114 A.L.R. 1218.
Since the question of Montana’s statutory law on the effect of a rebuttable presumption was not “discussed and decided” by the Supreme Court in this “case of a reversal", the decision of the Supreme Court with respect to the general non-statutory law of the function and effect of a rebuttable presumption is not the law of the case That question is now presented for discussion and decision for the first time.
“While undoubtedly an affirmance of a judgment is to be considered an adjudication by the appellate court that none of the claims of error are well founded,— even though all are not specifically referred to in the opinion, — yet no such conclusion follows in case of a reversal. It is impossible to foretell what shape the second trial may take or what questions may then be presented. Hence the rule is that a judgment of reversal is not necessarily an adjudication by the appellate court of any other than the questions in terms discussed and decided.” (Emphasis supplied). Mutual Life Ins. Co. v. Hill, 193 U.S. 551, 553, 554, 24 S.Ct. 538, 539, 48 L.Ed. 788; Wolff Packing Co. v. Court of Industrial Relations, 267 U.S. 552, 562, 45 S.Ct. 441, 69 L.Ed. 785; Hartford Life Ins. Co. v. Blincoe, 255 U.S. 129, 135, 136, 41 S.Ct. 276, 65 L.Ed. 549; Georgia Railway & Electric Co. v.
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DENMAN, Circuit Judge.
This is the third appeal in this case, and the issues of fact involved have been sufficiently stated in our former opinions. Gamer v. New York Life Ins. Co., 9 Cir., 76 F.2d 543; New York Life Ins. Co. v. Gamer, 9 Cir., 90 F.2d 817. There is new evidence for insurer concerning the character of the bullet and its angle of emersion from the back of Gamer’s skull, and for the insured concerning his business activity shortly before his death. Each party moved for an instructed verdict. There is no such overwhelming preponderance of evidence for either party as requires our holding error the refusals of the trial court to instruct a verdict for either.
[376]*376In the trial which produced,the judgment from which the second appeal was taken it appeared that the plaintiff, executrix of decedent’s will, had produced evidence in support of the issue of accidental death tendered hy ‘her complaint that the death of deceased was caused by a gunshot in the head. The trial court instructed the jury that in this situation the presumption against suicide shifted the burden of proof to the insurance company, and that it must establish the insured’s suicide by a preponderance of the evidence. On-appeal we sustained the instruction, our entire opinion resting upon the decision in Travellers’ Ins. Co. v. McConkey, 127 U.S. 661, 664, 666, 8 S.Ct. 1360, 32 L.Ed. 308, et seq., which, we assumed, established the law as above stated. We intimated a doubt as to whether that case correctly stated the law, but felt bound by it. Though it lurked in the case, there was no consideration or mention of thp effect of the then existing body of statutory law of Montana on presumptions with reference to the quantum of evidence necessary to overcome them, bringing the case within Burns Mortg. Co. v. Fried, 292 U.S. 487, 493, 495, 54 S.Ct. 813, 78 L.Ed. 1380.
On this second appeal the Supreme Court granted certiorari and reversed, holding that we erred as to the quantum of evidence required to overcome a ■ rebuttable presumption; that such a presumption is not evidence; that it does not shift to the defendant the burden of proof on the issue it supports; that it does not require a preponderance of the evidence to overcome it; that the effect of the presumption here against suicide is merely to require the defendant to go forward and produce sufficient evidence to support a finding of suicide; and that when the defendant has produced that amount of evidence, the presumption against suicide disappears even though there is other strong evidence of accidental death.
The insurance company claims this holding of the Supreme Court is the law of the case. If it be, the company is correct in' its contention that it has been violated in an instruction, later stated, concerning a presumption as affecting the issue of suicide, in which the court not only failed to advise the jury that it would disappear if there were introduced evidence sufficient to support a finding of suicide, but ascribed an effect to the presumption strongly supporting plaintiff’s contention of accidental death.
However, this issue of law presented by appellant in this regard differs from that on the last appeal. Here the present challenged instruction concerning the effect of the presumption is cast in the terms of 'the statutory law of Montana which in exact words is incorporated in it. Its validity does not concern the general nonstatutory law of the state as declared by its courts. For the reasons now stated, we do not agree with appellant’s contention that the rule stated in the Supreme Court’s opinion is the law of the case with reference to this new issue of law as to the validity of the instruction.
In our opinion in the second appeal we treated the case, under the rule in Swift v. Tyson, 16 Pet. 1, 10 L.Ed. 865, as one where, in the absence of controlling state statutes, the federal courts have the power to determine the law of a state, though its determination may differ from that of the courts of that state. Not only was no state statute considered in the opinion, but no decision of any of the Montana courts. We assumed that we were controlled by what sometimes has been called the federal common law. The fact that all the federal courts have judicial knowledge of the Montana statutes, made the question one that could and should have been decided in accordance with that law, but that was not done. “Questions which merely lurk in the record, neither brought to the attention of the court nor ruled upon, are not to be considered as having been so decided as to constitute precedents. See New v. Oklahoma, 195 U.S. 252, 256, 25 S.Ct. 68, 49 L.Ed. 182; Tefft, Weller & Co. v. Munsuri, 222 U.S. 114, 119, 32 S.Ct. 67,. 56 L.Ed. 118; United States v. More, 3 Cranch 159, 172, 2 L.Ed. 397; The Edward, 1 Wheat. 261, 275, 276, 4 L.Ed. 86. * * * ” Webster v. Fall, 266 U.S. 507,. 511, 45 S.Ct. 148, 149, 69 L.Ed. 411.
The opinion of the Supreme Court assumed, as did ours, that there were no. statutes of the State of Montana determining the effect of a rebuttable presumption. In its citation of authority it mentions but one Montana case concerning; the quantum of evidence necessary to. overcome a rebuttable presumption, in. which no reference is made to the statutory law of that state in that regard-There was a dissent by Mr. Justice Black [377]*377in which there is no mention of any of these Montana statutes. New York Life Ins. Co. v. Gamer, 303 U.S. 161, 58 S.Ct. 500, 82 L.Ed. 726, 114 A.L.R. 1218.
Since the question of Montana’s statutory law on the effect of a rebuttable presumption was not “discussed and decided” by the Supreme Court in this “case of a reversal", the decision of the Supreme Court with respect to the general non-statutory law of the function and effect of a rebuttable presumption is not the law of the case That question is now presented for discussion and decision for the first time.
“While undoubtedly an affirmance of a judgment is to be considered an adjudication by the appellate court that none of the claims of error are well founded,— even though all are not specifically referred to in the opinion, — yet no such conclusion follows in case of a reversal. It is impossible to foretell what shape the second trial may take or what questions may then be presented. Hence the rule is that a judgment of reversal is not necessarily an adjudication by the appellate court of any other than the questions in terms discussed and decided.” (Emphasis supplied). Mutual Life Ins. Co. v. Hill, 193 U.S. 551, 553, 554, 24 S.Ct. 538, 539, 48 L.Ed. 788; Wolff Packing Co. v. Court of Industrial Relations, 267 U.S. 552, 562, 45 S.Ct. 441, 69 L.Ed. 785; Hartford Life Ins. Co. v. Blincoe, 255 U.S. 129, 135, 136, 41 S.Ct. 276, 65 L.Ed. 549; Georgia Railway & Electric Co. v. Decatur, 297 U.S. 620, 623, 624, 56 S.Ct. 606, 80 L.Ed. 925. Cf. Messinger v. Anderson, 225 U.S. 436, 443, 444, 32 S.Ct. 739, 56 L.Ed. 1152.
Montana’s code provides that a presumption does not disappear when there is merely enough evidence to support a finding adverse to it. It remains as “indirect evidence”, Revised Codes of Montana, 1935, Section 10600, until rebutted by a preponderance of the evidence to the contrary. This preponderance must be weighed and determined by the trier of fact. The Montana courts interpret its code section 10606 as meaning that a presumption- “fades away” only when the party to whom it is opposed produces sufficient evidence to preponderate against it. In re Wray’s Estate, 1933, 93 Mont. 525, 535, 19 P.2d 1051; Nichols v. New York Life Ins. Co., 1930, 88 Mont. 132, 140, 141, 292 P. 253; Monaghan v. Standard Motor Co., 1934, 96 Mont. 165, 173, 174, 29 P.2d 378; McLaughlin v. Corcoran, 1937, 104 Mont. 590, 597, 69 P.2d 597.
The Montana law also requires that a jury must be instructed that a “presumption or other evidence” may not be overcome by the “declarations of any number of witnesses, which do not produce conviction in their minds * * ” (Emphasis supplied). Revised Codes of Montana (1935) Section 10672, subdivision 2. The Montana Supreme Court cites to this provision :
“A statutory disputable presumption is satisfactory if uncontradicted. Renland v. First Nat. Bank, 90 Mont. 424, 4 P.2d 488. The statute commands that it must be followed if uncontroverted. Section 10604, Rev.Codes, 1921. Whether sworn testimony to the contrary is sufficient to rebut such a statutory presumption is a question for the triers of fact to determine, except where the facts proved are overwhelmingly against the presumed facts and permit of but one rational and reasonable conclusion. Renland v. First Nat. Bank, supra; subdivision 2, § 10672, Id.” McMahon v. Cooney et al., 95 Mont. 138, 144, 145, 25 P.2d 131, 133. Cf. Decision of California Supreme Court on the earlier California code section identical with Montana’s, People v. Milner, 122 Cal. 171, 54 P. 833, 837.
The court gave an instruction, construing with reference to the question of suicide or accident the statutory presumption, “ * * * 28. That things have happened according to the ordinary course of nature and the ordinary habits of life.” Revised Codes of Montana, 1935, Section 10606.
Appellant stated no objection below on the ground that the Montana statutory provisions concerning the quantum of evidence to rebut a presumption had not been properly stated. The instruction was:
“It is presumed in law that things have happened according to the ordinary course of nature and the ordinary habits of life, so in determining whether or not Mrs. Gamer has borne the burden of proving her case by a preponderance of the evidence or not, you have the right to deal with the question according to the ordinary course of nature, and in that connection may ask yourself whether under all the facts in the case here it would be according to the ordinary course of nature for a man acting naturally in the situation that Walter Gamer was to go upstairs and deliberately kill [378]*378himself; or is it more reasonable to suppose, that is, is it according to the ordinary course of nature for a man in the situation of the deceased, Walter Gamer, to desire to continue to go on in life; and if you find that according to the ordinary course of nature it is more reasonable to suppose that he would desire to go on in life, enjoying the things he had and bearing the burden which may have been his; then you ask yourself is it according to the ordinary habits of life for a man such as" Walter Gamer was, as shown by the evidence here, considering the ordinary habits of life, or the ordinary habits of men in the situation that he was, for him to go upstairs and shoot ’himself intentionally for the purpose of destroying his own life. Or is it more reasonable, according to the ordinary habits of life to suppose that he went there for the purpose of getting his gun to go hunting or to take with him on a fishing trip and that by some fortuitous circumstance, not intended by him, the gun was discharged and brought about the result that has been detailed here.
“So, gentlemen, getting back to the simple rule here, you are ifastructed that if you find from a preponderance of the evidence that the death of Edward W. Gamer was not due to suicide, but resulted directly and independently of all other causes, from bodily injury effected solely through external violent and accidental means, and occurred within ninety days after such injury, then your verdict should be for the plaintiff and against the defendant, New York Life Insurance Company, a corporation, for the sum of twenty thousand dollars, * * *
Appellant claims, first, that the instruction is error because “there is now no room in this case for a presumption of accidental death; that the evidence has entirely dissipated any presumption of accidental death and such presumption has entirely disappeared from the case and the case now stands for decision upon the evidence unaffected by any presumption that death was due to accident.” We have held to the contrary that there is no such preponderance in the evidence establishing that the death was not accidental.
It also contends that the instruction is erroneous because “before an inference may be deduced or drawn by the jury, the evidence must not only tend to prove the efficient proximate cause relied upon, but must tend equally to exclude any other. In other words, if the evidence furnishes a basis for two equally permissible conclusions, one of which speaks accident while the other points to suicide, the case must fail for want of sufficient evidence, and no verdict may be based thereon”, and because there are no facts from which absence of suicide may be inferred, and the inference from suicide, if any is possible, can be drawn only from another inference.
There is secondary evidence concerning the deceased’s health, happiness, business affairs, relationship to his family, and purpose for which he was holding the rifle when he was shot, from which it may be inferred directly that suicide was not the cause of his death and from which suicide cannot be inferred as the cause. Since the evidence of these facts warrants the inference, there is no basing an inference on an inference. Th'ere is no error in the overruling of appellant’s objections.
Objections similar to those stated were offered to other instructions concerning the Montana statutory law regarding secondary evidence and inferences therefrom. What we have said applies to these objections, and we find no error in their overruling.
Appellant offered in evidence a large model of the closet in which Gamer was shot. It was based upon figures and facts given in evidence. We believe it well may have been helpful to the jury, but its admission was a matter within the trial judge’s discretion both under the Montana law, section 10599, Revised Codes of Montana, 1935, and generally in federal and state courts. We cannot hold that he abused it.
Affirmed.