The opinion
DENISON, Circuit Judge.
I concur in thinking that the lower court was, and this court is, bound by the MeConkey Case, and hence that there was no error; but the peculiar character and effect of this “presumption of nonsuieide” perhaps justify further comment. Its origin seeins to be in early cases, which had occasion to and did decide (rightfully, of course) that there is no presumption of suicide, and which then assumed that therefore there is a presumption of nonsuieide — an obvious non sequitur. All authorities agree that in a death action upon an accident policy, and where suicide is not pleaded as an affirmative defense, the burden of proof is on plaintiff to establish that the death was by accident, and hence by inclusion was not by suicide. We may go further, and concede that, in case there appeared a death by violence, with no facts whatever tending to show either accident or suicide (if such a case can be imagined), human experience would justify an inference which might become such a presumption as to require the insurer to put in some proof, tending to show suicide, or else suffer a directed verdict; but, after all the facts and circumstances appear, and some support one and some the other of the two opposing theories, no room remains for any presumption to have any force. The question is at large on the proofs, and the burden of proof remains on plaintiff.
What it seems to me must be “the true doctrine” is well stated by Judge Paris in the Van Crome Case, supra, 11 F.(2d) page 352. And see Wigmore, supra, §§ 2491, 2492. The developing clarification of the true force of this “presumption of nonsuieide,” indicated by the references just made, may find analogy in the “presumption of due care” and its disappearance from the evidential field. In an action based upon a highway railroad crossing accident, the burden is on defendant to show plaintiff’s contributory negligence, and hence its antithesis, due care, is to be assumed until overcome. In this procedural sense there is such a presumption; and it has often been spoken of by the Supreme Court (Baltimore & Potomac R. R. Co. v. Landrigan, 191 U. S. 461, 474 , 24 S. Ct. 137 , 48 L. Ed. 262 ) and by this court as if evidence for plaintiff oh that issue; but plainly, if it were substantial evidence, a verdict for defendant in that type of case never could be directed. In B. & O. R. R. v. Goodman (C. C. A.) 10 F.(2d) 58, 59 , this court referred to that presumption in a way that might seem to indicate that we regarded it as some proof of due care. The Supreme Court ( 275 U. S. 66 , 48 S. Ct. 24 , 72 L. Ed. 167 , 56 A. L. R. 645) held that contributory negligence conclusively appeared, and so necessarily denied evidential force to this “presumption.” See, also, Parramore v. R. R. (C. C. A. 8) 5 F.(2d) 912, 915 .
In such a case as we have here I doubt whether there is even any “evidentiary inference.” True, sane men do not commonly kill themselves; but often they do; and humán esperience teaches that existing or imminent burdens may be so fearsome that to some minds self-destruction seems the easy way out and the natural course to take. Here there was proof tending to show that the overturn of the auto could not have occurred, save by the driver’s intentional turning off the road, and so suicide must have been intended, ánd there was proof tending to show that death would not follow such an accident, unless by chance, but only injury and pain, and so suicide could not have been intended. There were circumstances to the contrary of each of these inferences. Proofs indicated a strong, if not overwhelming, motive for insured to take his life, and others indicated that he would have fought courageously for vindication and would have scorned suicide as confession. Upon such a record it was for the jury to say whether the conclusion of accident was supported by the preponderance of inferences; and I cannot see how any presumption, or even inference, as to the action of the average man under average circumstances could help the jury to determine the action of this man under these circumstances.
In this ease, as in the McConkey Case, it seems to me that, in spite of the protestations to the contrary, the burden of proof— the risk of nonpersuasion — was shifted to defendant. As I read the charge of the trial court in the MeConkey Case, it was that the burden of proof to show accident, rather than suicide, was on the plaintiff, but that, if the evidence of each was equally balanced, then “the law "was for the plaintiff.” The Supreme Court approved both of these conclusions, plainly not regarding them as inconsistent; but the conflict of view revealed by *85 the cases cited in Judge HICKENLOOPER’S opinion shows that the two conclusions are not easy to reconcile.