MARTINEAU, District Judge.
Appellant, Estelle E. Tsehudi, as beneficiary, brought suit on two policies of insurance issued by appellee upon the life of her husband, Robert Tsehudi. She sues to recover upon the usual double indemnity portion of said policies for the accidental death of the insured on or about the 27th day of August, 1932. At the conclusion of the testimony the learned trial judge directed a verdict in favor of the defendant, and from this action of the court the plaintiff appeals.
Appellee concedes that the policies were in full force and effect and paid their face, but denied double indemnity liability on the ground that the insured had committed suicide.
There is no substantial dispute as to the facts surrounding the death of the insured. At the time of his death he was forty-five years of age, a married man living with his family, consisting of a wife and two daughters, one aged eighteen and the other fifteen years. He had a $9,000 stock interest in a clothing store, by which he was employed. His stock was not entirely paid for, but was held in escrow while he was paying it out. He had been married to his wife for nineteen years, and during that time had been constantly employed, furnishing his family a good living. He and his family were happy and contented. His health was good, except for a slight hernia, which did not seem to trouble him much. He had an unusually happy disposition, and on the evening prior to his death was his usual self, jollying with his friends, and having a good time. His business and home were in Dubuque, Iowa. Between 5:30 and 6 o’clock in the evening of [307]*307August 26, 1932-, the day prior to his death, he met an old friend and went with him to Bast Dubuque in a rented Ford for the purpose of collecting bills for his store. On tho way they stopped at a soft drink parlor. Ho then talked to some people about their bills, and later had supper with three friends at Lyon’s Place; the supper consisting of fish, tomatoes, and beer. Here they remained until 7:30. He ate heartily, and was in a good humor. They then returned to Dubuque, to a soft drink parlor, where he again drank beer and ate cheese sandwiches. He left this place shortly after 7:30, and returned again at 9:30, where he played cards and entertained people with card tricks; drinking beer and eating cheese sandwiches. He remained there until about 12 o’clock midnight, when he asked a friend, with whom he started out early in the evening, to call a cab, saying that he would see the circus load. Instead of going to see the circus, after riding a few blocks they went to another beer plant, where he drank beer and remained until shortly after 1 o’clock. He was then picked up by the taxi driver who had been driving him earlier in the evening, and was driven to Twenty-Fifth and Central avenue in tho city of Dubuque, where ho alighted from the car, as he had done many times before; his home being two doors north of this place. This was the last seen of the deceased alive. Tho next morning between 10:30 and 11 he was found dead in his garage.
He, his wife and their family occupied the upstairs or second story of the house located at 2512 Central avenue, and his motlier-in-law and a daughter occupied the downstairs. The garage was a long frame building lying to the east of the dwelling. The dwelling and the garage extended from Central avenue on the west to White street on the east, a distance of over 200’ feet. These parallel streets ran north and south, being connected by Twenty-Fifth street, running east and west. A drug store is on the northeast comer of the intersection of Central avenue and Twenty-Fifth street, and the deceased’s home was in the second story of the building next north of this drug store. There is no alloy in the block. The garage had five separately partitioned individual garages, extending east and west; . the Tsehudi garage being the center one, where his body was found, there being two other compartments to the east of it towards White street and two to the west towards the dwelling. This garage is about 60 feet north of Twenty-Fifth street, with no obstructions between. The doors of the various individual garages open to the south. A sidewalk extends along the north side of Twenty-Fifth street, on the south side of the drug store. There is also a sidewalk east of the garages on White street. The individual garage on the west end of the row is about 40 feet from the house. The Tsehudi garage was practically air-tight, with no windows, except those in the doors. The doors dragged on the cement, and at the time the deceased’s body was found the east door was open three or four inches. The garage was walled clear to the top with secondhand lumber. The doors were close fitting, and the windows were in perfect condition. The individual garage was 13 feet wide by 17 feet long. Plaintiff and her daughter went riding the evening before the accident, returning about 9:30> leaving the car in the yard, as she often did. The deceased had informed his wife that ho would not be home that evening. She remained up until about 12:30 waiting for tho elder daughter to return, sitting a part of the time on the screened porch t® the rear of her flat. At the time she retired the car was still standing in tho yard. Her husband would frequently drive it in the garage when he came home late. The next morning when she awoke she discovered that her husband had not returned. She then had her daughter call the store. He was not there and she called him again in about im hour. Hot finding him at about 11 o’clock she started to get her car to look for him. Upon entering the garage she discovered the body of her husband.
Tho car was slightly to the left of the center of the garage. There was about a foot space between the rear bumper and tho doors. The deceased was found upon a cushion taken from the rear seat of tho car, and placed upon the floor along the oast side of the ear, and near the rear right wheel. The cushion was about throe inches from the east wall of the garage and a foot or a foot and a half from tho car. The deceased was lying on his hack, with his face to the right or east, with his left leg slightly raised. The top of his head was slightly forward of the huh of the right rear wheel. His hat was on the front seat, his coat was either on the front seat or over the back of it, and his wrist watch was either strapped or buckled around the steering wheel. The ignition switch was on, and the gasoline tank was empty. There was hut little gas in the tank when the plaintiff returned from her ride the evening before. The night was a warm summer night.
It is conceded that the insured died from monoxide poisoning. Tho garage doors [308]*308opened to the south, and there was an unobstructed view on the part of neighbors living on the south side of Twenty-Fifth street, and passersby along the street, into the garage when the doors were open.
There is no evidence showing any motive for self-destruction. The trial court was of the opinion that these facts showed conclusively that the deceased had committed suicide, and that reasonable minds could not reach a different conclusion.
Plaintiff is entitled to have the most favorable construction of which it is susceptible placed upon the evidence.
Before she can recover she must first show that deceased’s death was due to external violence, and, secondly, that it was due to accidental means. The proof coneededly shows that death was caused by monoxide gas. Death due to monoxide gas is by external violence. Metropolitan Life Insurance Co. v. Broyer (C. C. A.) 20 F.(2d) 818; New York Life Insurance Company v. Brown (C. C.
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MARTINEAU, District Judge.
Appellant, Estelle E. Tsehudi, as beneficiary, brought suit on two policies of insurance issued by appellee upon the life of her husband, Robert Tsehudi. She sues to recover upon the usual double indemnity portion of said policies for the accidental death of the insured on or about the 27th day of August, 1932. At the conclusion of the testimony the learned trial judge directed a verdict in favor of the defendant, and from this action of the court the plaintiff appeals.
Appellee concedes that the policies were in full force and effect and paid their face, but denied double indemnity liability on the ground that the insured had committed suicide.
There is no substantial dispute as to the facts surrounding the death of the insured. At the time of his death he was forty-five years of age, a married man living with his family, consisting of a wife and two daughters, one aged eighteen and the other fifteen years. He had a $9,000 stock interest in a clothing store, by which he was employed. His stock was not entirely paid for, but was held in escrow while he was paying it out. He had been married to his wife for nineteen years, and during that time had been constantly employed, furnishing his family a good living. He and his family were happy and contented. His health was good, except for a slight hernia, which did not seem to trouble him much. He had an unusually happy disposition, and on the evening prior to his death was his usual self, jollying with his friends, and having a good time. His business and home were in Dubuque, Iowa. Between 5:30 and 6 o’clock in the evening of [307]*307August 26, 1932-, the day prior to his death, he met an old friend and went with him to Bast Dubuque in a rented Ford for the purpose of collecting bills for his store. On tho way they stopped at a soft drink parlor. Ho then talked to some people about their bills, and later had supper with three friends at Lyon’s Place; the supper consisting of fish, tomatoes, and beer. Here they remained until 7:30. He ate heartily, and was in a good humor. They then returned to Dubuque, to a soft drink parlor, where he again drank beer and ate cheese sandwiches. He left this place shortly after 7:30, and returned again at 9:30, where he played cards and entertained people with card tricks; drinking beer and eating cheese sandwiches. He remained there until about 12 o’clock midnight, when he asked a friend, with whom he started out early in the evening, to call a cab, saying that he would see the circus load. Instead of going to see the circus, after riding a few blocks they went to another beer plant, where he drank beer and remained until shortly after 1 o’clock. He was then picked up by the taxi driver who had been driving him earlier in the evening, and was driven to Twenty-Fifth and Central avenue in tho city of Dubuque, where ho alighted from the car, as he had done many times before; his home being two doors north of this place. This was the last seen of the deceased alive. Tho next morning between 10:30 and 11 he was found dead in his garage.
He, his wife and their family occupied the upstairs or second story of the house located at 2512 Central avenue, and his motlier-in-law and a daughter occupied the downstairs. The garage was a long frame building lying to the east of the dwelling. The dwelling and the garage extended from Central avenue on the west to White street on the east, a distance of over 200’ feet. These parallel streets ran north and south, being connected by Twenty-Fifth street, running east and west. A drug store is on the northeast comer of the intersection of Central avenue and Twenty-Fifth street, and the deceased’s home was in the second story of the building next north of this drug store. There is no alloy in the block. The garage had five separately partitioned individual garages, extending east and west; . the Tsehudi garage being the center one, where his body was found, there being two other compartments to the east of it towards White street and two to the west towards the dwelling. This garage is about 60 feet north of Twenty-Fifth street, with no obstructions between. The doors of the various individual garages open to the south. A sidewalk extends along the north side of Twenty-Fifth street, on the south side of the drug store. There is also a sidewalk east of the garages on White street. The individual garage on the west end of the row is about 40 feet from the house. The Tsehudi garage was practically air-tight, with no windows, except those in the doors. The doors dragged on the cement, and at the time the deceased’s body was found the east door was open three or four inches. The garage was walled clear to the top with secondhand lumber. The doors were close fitting, and the windows were in perfect condition. The individual garage was 13 feet wide by 17 feet long. Plaintiff and her daughter went riding the evening before the accident, returning about 9:30> leaving the car in the yard, as she often did. The deceased had informed his wife that ho would not be home that evening. She remained up until about 12:30 waiting for tho elder daughter to return, sitting a part of the time on the screened porch t® the rear of her flat. At the time she retired the car was still standing in tho yard. Her husband would frequently drive it in the garage when he came home late. The next morning when she awoke she discovered that her husband had not returned. She then had her daughter call the store. He was not there and she called him again in about im hour. Hot finding him at about 11 o’clock she started to get her car to look for him. Upon entering the garage she discovered the body of her husband.
Tho car was slightly to the left of the center of the garage. There was about a foot space between the rear bumper and tho doors. The deceased was found upon a cushion taken from the rear seat of tho car, and placed upon the floor along the oast side of the ear, and near the rear right wheel. The cushion was about throe inches from the east wall of the garage and a foot or a foot and a half from tho car. The deceased was lying on his hack, with his face to the right or east, with his left leg slightly raised. The top of his head was slightly forward of the huh of the right rear wheel. His hat was on the front seat, his coat was either on the front seat or over the back of it, and his wrist watch was either strapped or buckled around the steering wheel. The ignition switch was on, and the gasoline tank was empty. There was hut little gas in the tank when the plaintiff returned from her ride the evening before. The night was a warm summer night.
It is conceded that the insured died from monoxide poisoning. Tho garage doors [308]*308opened to the south, and there was an unobstructed view on the part of neighbors living on the south side of Twenty-Fifth street, and passersby along the street, into the garage when the doors were open.
There is no evidence showing any motive for self-destruction. The trial court was of the opinion that these facts showed conclusively that the deceased had committed suicide, and that reasonable minds could not reach a different conclusion.
Plaintiff is entitled to have the most favorable construction of which it is susceptible placed upon the evidence.
Before she can recover she must first show that deceased’s death was due to external violence, and, secondly, that it was due to accidental means. The proof coneededly shows that death was caused by monoxide gas. Death due to monoxide gas is by external violence. Metropolitan Life Insurance Co. v. Broyer (C. C. A.) 20 F.(2d) 818; New York Life Insurance Company v. Brown (C. C. A.) 39 F.(2d) 376. It being shown that death was due to external violence by inhaling monoxide gas, it then devolved upon plaintiff to show that the gas was not intentionally and purposely inhaled by the deceased. That burden is met by proof of death by inhaling monoxide gas, for the applicable presumption of law is that the inhaling of the gas was accidental, and death was due to accidental means. This shifted the burden to the defendant to show that the gas was intentionally and purposely inhaled. Travelers’ Insurance Company v. McConkey, 127 U. S. 661, 8 S. Ct. 1360, 32 L. Ed. 308; Metropolitan Life Insurance Company v. Broyer, supra; New York Life Insurance Company v. Ross (C. C. A.) 30 F.(2d) 80.
Plaintiff was entitled to have her ease go to the jury, unless the facts surrounding the death of the deceased are such as to prove conclusively that he committed suicide.
There is no direct testimony that he intentionally left his ear running. There are many facts proved which, in our opinion, lead to the conclusion that he did not commit suicide. There is an entire absence of any motive for self-destruction. From 5:30 on the evening prior to his death up to 1:30 when he was last seen, he was in a good humor and was having a good time. While it is possible that the deceased committed suicide, it seems unreasonable that he would without a motive do so. His decision to sleep in his garage rather than disturb his wife and family at an unusually late hour, after having drunk beer freely to such an extent as to disclose this to his wife, was one that a reasonable man might have made. There are but few men who will, if they can avoid it, appear before their wives in an intoxicated condition, especially if they are not accustomed to doing so. To prevent such an exposure they will even do things more discomforting than sleeping on a garage floor on a ear cushion. Common and general observation confirm the truth of this statement. The closing of the garage doors could have been to conceal himself from the view of the passersby.
Those who testify as to Tsehudi’s condition just prior to his return home say that he appeared to be sober. Where the evidence shows that a man has been repeatedly drinking beer, perhaps home-brew, from 5:30' in the afternoon to 1:30' at night, common experience compels us to the conclusion that he could not have been duly sober, although he may not have appeared to a casual observer to be drunk. Under the state of facts disclosed in this record, a jury may reasonably reach the conclusion that he drove his ear into the garage, decided to sleep there for awhile, and unintentionally left the ear running. The question of whether the deceased committed suicide or not should have been left to the jury.
The case is reversed and remanded.