(dissenting).
I find myself unable to concur in the foregoing opinion. It will not be necessary to restate the facts, further than to call attention to a few additional facts which I shall take occasion to do during the course of the opinion.
As stated in the majority opinion, the plaintiff seeks to recover upon the double indemnity portion of the insurance policies issued by appellee upon the life of Robert Tsehudi; it being alleged that his death resulted directly and independently of all other causes from bodily injury sustained through external, violent, and accidental means. The burden of proof was upon her not only to prove the death of the insured, but to prove that such death resulted from accidental means. Lincoln National Life Ins. Co. v. Erickson (C. C. A. 8) 42 F.(2d) 997; Love v. New York Life Ins. Co. (C. C. A. 5) 64 F.(2d) 829; New York life Ins. Co. v. Anderson (C. C. A. 8) 66 F.(2d) 705; Burkett v. New York Life Ins. Co. (C. C. A. 5) 56 F.(2d) 105; Pilot Life Ins. Co. v. Wise (C. C. A. 5) 61 F.(2d) 481.
*309It is true that the presumption against suicide may aid plaintiff! in sustaining the burden of showing an accidental death, yet the burden of proof is nevertheless upon her, even though the burden of the evidence may, by reason of this presumption, be shifted. The majority opinion is based wholly upon the presumption against self-destruction; but that presumption may be successfully invoked only where one comes to his death under circumstances not explained. Like other presumptions, it is not evidence, and cannot be weighed in the balance against evidence. United States v. Le Due (C. C. A. 8) 48 F.(2d) 789; Fidelity & Casualty Co. v. Niemann (C. C. A. 8) 47 F.(2d) 1056; Wirthlin v. Mutual Life Ins. Co. (C. C. A. 10) 56 F.(2d) 137, 139, 86 A. L. R. 138; Frankel v. New York Life Ins. Co. (C. C. A. 10) 51 F.(2d) 933, 935.
As said by the Circuit Court of Appeals of the Tenth Circuit in Wirthlin v. Mutual Life Insurance Company, supra, speaking through Judge Cotieral, formerly a member of this court: “It is true there is a presumption against suicide, but it is one of law, and it disappears when circumstances are adduced showing how the death occurred, and in that case the beneficiary is bound to establish that the death was accidental.”
Again, in Frankel v. New York Life Insurance Company, supra, it is said: “Appellant invokes the rule that there is a presumption a death is not duo to suicide but to accident, and contends that this together with the evidence required a submission of the ease to the jury. The presumption is one of law. It is indulged because self-destruction is ‘contrary to the general conduct of mankind; it shows gross moral turpitude in a sane person.’ And a party is entitled to the benefit of the presumption, in the absence of evidence respecting the cause of a death. (Italics supplied.) Travelers’ Ins. Co. v. McConkey, 127 U. S. 661, 8 S. Ct. 1360, 1363, 32 L. Ed. 308. But the plaintiff had the burden of proving tlie fact necessary to establish the liability of the insurance company, and the legal presumption that might aid her could bo of value only under circumstances leaving the cause of death in doubt. Supreme Tent K. of M. v. King (C. C. A.) 142 F. 678; New York Life Ins. Co. v. Bradshaw (C. C. A.) 2 F.(2d) 457; New York Life Ins. Co. v. Weaver (C. C. A.) 8 F.(2d) 680; Mutual Life Ins. Co. v. Hatten (C. C. A.) 17 F.(2d) 889; 1 C. J. 496. As was aptly said in Von Crome v. Travelers’ Ins. Co. (C. C. A.) 11 F.(2d) 350, the legal presumption disappears where there is evidence of suicide. In this case, there was an ample showing of enlightening circumstances on the subject.”
Neither do I think it was incumbent upon defendant “to prove conclusively that he (insured) committed suicide.” This rule, I take it, would be tantamount to a rule requiring suicide to be established beyond a reasonable doubt; but suicide may be proven, as any other fact, either by direct or circumstantial evidence. It may be established by a preponderance of direct or circumstantial evidence of sufficient weight to overcome the presumption against suicide, and it is generally held that, where circumstantial evidence is relied upon, the facts and circumstances shown must be such as to exclude any reasonable hypothesis that insured met his death by natural or accidental causes, or any other cause than that of suicide.
In considering the circumstances and the details of the evidence, it is important to have in mind another presumption, and that is that every person is presumed to intend the natural and probable consequences of his own acts. First Nat. Bank of Clarion v. Jones, 21 Wall. 325, 22 L. Ed. 542; Navassa Guano Co. v. Cockfield (C. C. A. 4) 253 F. 883, 6 A. L. R. 1168; In re Amster (D. C.) 249 F. 256; Siesseger v. Puth (Iowa) 248 N. W. 352; Peterson v. Wahlquist, 125 Neb. 217, 249 N. W. 678, 89 A. L. R. 747; John F. Jelke Co. v. Hill, 208 Wis. 650, 242 N. W. 576.
Contrary to a suggestion contained in the majority opinion, it appears from the undisputed evidence that the insured on the night preceding his death was not intoxicated. True, the evidence shows that he drank some beer, but this was extended over several hours’ time, and at least one witness said he was drinking near beer. He was playing cards, and the undisputed evidence is to the effect that he was not intoxicated, nor do the; circumstances indicate that he was intoxicated. He came to his home in the usual way. His wife testifies that if ho did not have a ear with him, he invariably took a taxi when coming home at night. His own car was standing in front of the garage where it had been left by members of the family. The admitted physical facts conclusively show that he entered the car, started it, and drove it into the garage. He then threw the shift into neutral, but left the engine running. lie removed his wrist watch, fastened it to the steering wheel, placed his hat on the front seat, and his coat over the Rack of the front seat. He must of necessity have then gotten out of the car and *310closed the front door. It was a hot night in August, but notwithstanding this he closed the garage door. Either before or after closing the garage door, he opened the back door of the car, removed the cushion, and closed the door, because all the doors in the ear were found closed. He placed this cushion, apparently with care, next to the right hind wheel, near the exhaust pipe of the car. He then laid down with his head on the cushion and his nostrils within a few inches of the end of this exhaust pipe.
First, it should be observed that the acts performed by him do not appear to bear any evidence of intoxication. His hat was’ not on the garage floor, nor his coat out in the yard, nor was his watch found on the car floor, nor were the car doors left open, but every act was apparently performed with nicety, precision, and meticulous care. The evidence is undisputed that he died from monoxide poisoning, and he is presumed to- have known that the natural and necessary consequences of his acts would be his death, and, if - so, his death was certainly not accidental.
It is suggested that he may have felt some delicacy about waking his wife at that time of night in his then presumed intoxicated condition. I have already observed that the oral evidence was positive and undisputed that he was not intoxicated, and I have pointed out that his acts were not those of an intoxicated person; and there is no suggestion in the evidence that he ever before in his entire life slept out -in the garage, or any other such place,- instead of returning home as he was apparently wont to do. Again, it should be observed that this was a hot night in August, and yet the insured closed the door of this unventilated garage and lay down on the hard floor with his head next to the exhaust pipe, which was belching forth monoxide gas, intending, the majority opinion assumes, to sleep until morning. There was evidence that the door was slightly ajar, but manifestly it was his purpose to close it, but the bottom of the door dragged on the cement entrance or floor. If he was simply looking for sleeping quarters, why did he take the trouble to run the car into the garage, unless he wished it as an added convenience?
It is elementary that presumptions cannot be pyramided; that a presumption must be based upon facts, and not upon another presumption. Lincoln Nat. Life Ins. Co. v. Erickson (C. C. A. 8) 42 F.(2d) 997; Brown v. Maryland Casualty Co. (C. C. A. 8) 55 F.(2d) 159; Tucker v. Traylor Engineering & Mfg. Co. (C. C. A. 10) 48 F.(2d) 783. The
majority opinion violates this elementary rule. It is presumed, in the face of undisputed evidence and persuasive circumstances to the contrary, that the insured was intoxicated. Based upon this unwarranted presumption, it is then presumed that he did not desire to meet his wife in that condition. It is then presumed, in the face of compelling circumstances, and contrary to all human probability, that on this hot August night he closed the garage dopr and lay down on the cement floor with his head on the car cushion to sleep. It is also presumed, without any evidence to sustain it, direct or circumstantial, that he unintentionally left the engine of the ear running,- expelling monoxide gas within a few inches of his nostrils. Anyone capable of doing-all the things which the insured did, without a mistake or careless act, must certainly have -discovered, at least when he placed his head near the end of the exhaust pipe, that the engine of the ear was running-The physical facts and surrounding circumstances conclusively and unmistakably establish that the insured committed suicide. New York Life Ins. Co. v. Anderson (C. C. A. 8) 66 F.(2d) 705; Von Crome v. Travelers’ Ins. Co. (C. C. A. 8) 11 F.(2d) 350, 352; Mutual Life Ins. Co. v. Hatten (C. C. A. 8) 17 F.(2d) 889, 891; Frankel v. New York Life Ins. Co. (C. C. A. 10) 51 F.(2d) 933; Wirthlin v. Mutual Life Ins. Co. (C. C. A. 10) 56 F.(2d) 137, 86 A. L. R. 138; Burkett v. New York Life Ins. Co. (C. C. A. 5) 56 F.(2d) 105, 107; New York Life Ins. Co. v. Trimble (C. C. A. 5) 69 F.(2d) 849, 851; Travelers’ Ins. Co. v. Miller (C. C. A. 7) 62 F.(2d) 910, 913; Mutual Life Ins. Co. v. Gregg (C. C. A. 6) 32 F.(2d) 567; New York Life Ins. Co. v. Ross (C. C. A. 6) 30 F.(2d) 80, 82.
In face of this positive proof explaining the cause of insured’s death, the presumption against suicide cannot prevail. As said by the Circuit Court of Appeals of the Sixth Circuit in New York Life Insurance Co. v. Ross, supra: “This presumption, as such, would not survive the introduction of evidence tending to prove suicide or even motive for suicide.”
In Von Crome v. Travelers’ Ins. Co., supra, in reviewing circumstances surrounding the death of the insured, we said: “In the light of these facts, the conclusion of suicide is inevitable as a matter of law.”
In Burkett v. New York Life Ins. Co., supra, it is said: “The burden was on the appellant to prove that the death of the insured ‘resulted directly and independently of all other causes from bodily injury effected sole-*311!y through, external, violent and accidental means.’ Evidence so far disclosed circumstances attending the death of the insured that no room was left for a reasonable hypothesis that it was caused by the act of another. The rebuttable presumption against suicide is overcome by evidence showing that the death was self-inflicted, and a finding that the death was accidental cannot properly be made where a fact or circumstance established by uncontroverted evidence is inconsistent with a reasonable hypothesis that it was due to accident.”
In Mutual Life Ins. Co. v. Hatten, supra, we said: “A sane person is presumed to intend the natural consequences of his act, and, if the evidence in a case shows that a party intentionally killed himself, then, of course, the presumption against suicide vanishes.”
In Frankel v. New York Life Ins. Co., supra, in discussing the presumption that death is not due to suieide, it is said: “As was aptly said in Von Crome v. Travelers’ Ins. Co. (C. C. A.) 11 F.(2d) 350, the legal presumption disappears where there is evidence of suicide. In this case, there was an ample showing of enlightening circumstances on the subject.”
It is also urged that no motive for self-destruction appears from the record, and it is observed in the majority opinion that defendant was married and living with his family, had purchased some interest in a clothing store by which he was employed, although his stock was not entirely paid for, was apparently living happily with his family, was in good health, arid of a happy disposition. But experience shows that men do commit suicide without any disclosed motive. None appeared in New York Life Insurance Co. v. Anderson, supra. Replying to this contention in Travelers’ Ins. Co. v. Miller, supra, it is said: “We have not overlooked the fact that Miller whs in the prime of life — happily married and snceessful. Suieide under any circumstances invites speculation as to its cause. The true explanation often is never known. Death seals the lips of the only one who knows. In controversies arising out of insurance policies after the death of the insured, courts can only view the acts of the insured at the time ox his death and therefrom spell out a case of accidental or suicidal death, giving to the insured the strong preaumi>tion of an accidental cause. Impossible as it may be to locate a motive for the act, the Pacts hero make it impossible for an impartial fact-finding tribunal to say that the death was accidental.”
In Frankel v. New York Life Ins. Co., supra, it is said: “We have not overlooked the contention that there was evidence to support the theory of an accident, consisting of circumstances tending to show that the assured had a composed mental attitude and a motive opposed to self-destruction. But it suffices to say that they are unavailing to detract materially from the showing of undisputed facts which to any reasonable mind are little short of demonstration.”
In New York Life Ins. Co. v. Trimble, supra, in disposing of the contention that no motive for suieide had been shown, the court said: “A motive for suicide is helpful to the defense but is not essential. Ætna Life Ins. Co. v. Tooley [(C. C. A.) .16 F.(2d) 243], supra, Burkett v. New York Life Ins. Co. (C. C. A.) 56 F.(2d) 105. This is so because in this life men who have no apparent motive for it do commit suicide. Perhaps always in the ease o£ a sane person who commits suicide there is a motivebut in many cases the motive is not and possibly could not be proven. And so here we leave out of consideration any question of motive for suieide, and assume there was none. In our opinion tbo circumstances in this ease are all consistent with the theory of suicide, and mo all inconsistent with any but a fanciful theory of accident.”
Verdicts must rest on fact, and not on fancy; on probabilities and not on bare possibilities. The theory of accident can only bo supported by piling possibility upon possibility, and by resorting to mere fancy and speculation.
I am of the view that the court properly directed a verdict for the defendant, and that the judgment appealed from should ho affirmed.