Gamer

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 In 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.…

(dissenting).

I dissent. The question presented by the main opinion is whether or not the plain mandate of the Supreme Court should be obeyed. I hold that it should.

I say “plain mandate” because the only question presented to or considered by the Supreme Court was as to the effect of the presumption against suicide. We had affirmed the judgment and had approved the following instruction:

“The presumption of law is that the death was not voluntary, and the defendant in order to sustain the issue of suicide on the part of E. Walter Gamer must overcome this presumption and satisfy the jury *379 by a preponderance of the evidence that his death was voluntary.” New York Life Ins. Co. v. Gamer, 9 Cir., 90 F.2d 817, 818 ; Id., 303 U.S. 161 , 58 S.Ct. 500, 501, 503 , 82 L.Ed. 726 , 114 A.L.R. 1218 .

The Supreme Court held that when the defendant produced evidence sufficient to sustain a verdict of suicide (that is, substantial evidence of suicide) the presumption against suicide vanishes, and the jury should not have been instructed on the subject of that presumption, and remanded the case to the District Court to proceed in accordance with that opinion. I quote the language of the…