SUPREME LODGE K. P. OF THE WORLD V. BECK.

751

PER CURIAM. The only question which has been argued at the bar is as to the the objection made to the admission in evidence of the record of the judgment of the circuit court of the United States for the Eastern district of Tennessee. The record purports to be an exemplified copy of the original proceedings in the cause, including the judgment itself, is attested by the' seal of the court, and is authenticated by the certificate of the deputy clerk of the court. Whether the record is sufficiently authenticated, pursuant to the provisions of section 905 of the Revised Statutes of the United States, is a question which need not be considered. The statute provides the mode of proof of the records and judicial proceedings of the courts of any state or territory, and has no application to those of the courts of the United States. Records may be proved by exemplifications (copies under seal), by office copies, and by sworn copies. Greenleaf states that "copies of records in judicial proceedings, under seal, are deeme,d of higher credit than sworn copies, as having passed under a more exact critical examination." 1 Green!. Ev. § 503. The rule is that every country recognizes the seals of its own tribunals without any further proof accompanying them. Delafield v. Hand, 3 Johns. 313. Each circuit and district court of the United States is presumed to know the seals of. every other circuit and district court of the United States, as each state court within a state is presumed to know and recognize the. seal of every other court of record within the same state. In Tur:nbull v. Payson,. 95 U; S. 424, it washeld!thilt the record of a district or circuit court of the United States may be proved in any o,thercircuit or district .court of the United States by a certificate of the clerk, under the seal of the court, without the certificate of the judge that the attestation is in due form. Although the certificate here was made by the deputy clerk, that officer.is by statute authorized, in the absence of·the clerk, to do an.d perform all the duties pertaining to the .office;and, in general, a deputy of a ministerial officer can do every act .which his principaJ might do. The Oonfiscation Cases, 20 WalL llH We are at ·lib, erty to presume, in favor of the .pr,oper·discharge of official duty, that the clerk was absent at thetime. Rankin v. Hoyt, 4 How. 327;Ud3J v. Grusell, 14 Wall. 1; Doughtyv. Hope, 3 Denio, 253, L N.. Y.79; Mosher v. Heydriek, .45 Barb. 549. The objections were correctly overruled; and the judgment is affirmed,' with costs. ':'. .
i :;

SUPREME LODGE KNIGlITS OF. PYTHIAS OF THE WORLD (Circuit Court of A!ppeals, Ninth Circuit.
EVIDENCE-SHIFTING 13:URJ)ENOF PROOF.

T.

BEOK;

May 16, 1899.)'

Where a defendlUlt in an action on a pollcy of life insurance pleads as a defense that the insured cominittedsuicide; by reason of which the policy' became void, the burden of establishing such defense rests upon the defendlUlt throughout the trial, .. The fact that the plaintiff Introduces in, evit.urnishe(l. the defend,ant, conta)ning dence the proofs of ment that the Insured coromi'tted l1uiclde and the verdict of a coroner's jury' to"that effect, while 'suchietidence :1$ entitled to its weight, and, standing

the

94 FEDER:AL

'i

alone" :would establis)r the facLol' suicide prima 'fllcie" does not shift the of proof on the issue, so as to require the plaintiff on the whole case 'tp' :a prepontierance of evidence, :Ullit dea'th resulted from other causes.'

.jri;;Erd>J.' ,tothe Oourt o¥.tqe United for the District ofr Montq:na. , ', ' Albert T. Loeb, for plaintiff, in 'error. ' O. B. ,Nolan, for defendant in error." Before-GILBERT, ROSS, and:M:qRROW, Oircuit Judges.
I:; i " .

"J;

)

-;

Circuit On 1st' day of April, 189,5, one Frank E. application for in the. end'owment rank, Knigb,ts',ot Pythias, 'which is the insurance branch of that society's business;' The application was accepted. The, applicant's wife, Lilliail it. Beck, thedefendant in er\'orhere, was named as beneficiary. The by-li):ws.of the society pertinent present case provide:
"If the death ofan,y memberot the endo:wment rank heretofore admitted into the first, second, third, or fourth' class, or hereafter admitted, shall result from sUIcide, either voluntary ()rinvoluntary,Whether such member shall be sane or insarieaHhe time, or if such death shall be caused 01' superinduced by the use of:intoxlcatlng liquor&,narcotics,Qr opiates, or in consequence of a duel, or at the hl!-nd, pf justice, or violation or atteIllpted violation of any criminal law, the amount to be paid upon such member's certificate shall be a sum only inpr<lp6rtlon to the whole amount as the matured life expectancy 'is to the entife 'expectancy at'fu!.te :of ,admission to the endowment rank; the' expectation of lite based upon the American Experience Table of 'Mortality in force at the t1IIle 'of, such death to goveJ,'ll."

R¢Sf3,

On the night of the 31st day of October, 1896, by the discharge of a double-barreled shotgun, which Beck at the time carried, he was killed. A coroner's inquest was held, and the verdict declared that the insured "came to his death, on the 31st of October, 1896, by shooting himself in the head with a double-barreled with the purpose aud intent of committing' suiCide, while temporarily insane, due probably to the:use of intoxicants ; that he threatened to kill his wife before killing hiitlself." Pursuant to the by-laws of the society, proofs of death were presented to it, whioh'vere signed aud sworn to by the beue'ficial'y" in which the statement was made that the death of the insured '<Vas cRllsed by! suicide. Annexed .to the proofs was a copy of the ,coroner's verdict, together with a certified copy of the testimoriy upon which it was based: In'due time, after the presentation of the proofs of death, a tender of $138 was made by the society, which was refused, and thereafter the present suit was commenced against the plaintiffin error to recover the sumof $3,000, which was the amount of the insUrance. While 'the comJ}laint 'alleges that the plaIntiff furnished the defendant witniproof of. the, death of the inspred, it contains no mention of the manner of his death. In defense of the action, the defenqaJlt. "that the "death ?1: ,said Beck ,from self-destruction, anC\l that he that, pnpr.to said Beck taking his life,said Beck was attemptingtovi,<llate, and did violate, the criminl'rl'laws of the state of Montilna." ' The' answer made a tender to the phUntiff of $lp8, and asked ',that the, be dismissed with its The case came onf,o,r irialbfore the court 'With a

LODGE K. P. OF THE WOJ;tLD V. BECK.

753'

jury, and resulted in a verdict for the plaintiff in the sum of $3,000. It is first claimed on behalf ofthe plaintiff in error that there is no evidence to sustain the verdict; in other words, that the court should have directed a verdict for the defendant. A careful examination of the evidence and consideration of the circumstances surrounding the killing satisfies' us that the trial court would not have been justified in doing so, but that it was a case proper to be submitted to the jury, under appropriate instructions. Complaint is next made of instructions given and refused, the substance of which complaint is that because, in the proofs of death presented by the beneficiary, which were introduced in evidence by the plaintiff, were the verdict of the coroner's jury and the statement of the beneficiary to the effect that the deceased committed suicide, the burden which theretofore rested on the defendant to prove that fact, which it alleged, as a defense, was thereby shifted, and that it then became incumbent upon the plaintiff to show, by a preponderance of evidence, that the death of the deceased was from accident or natural causes. Undoubtedly the preliminary proofs furnished the defendant by the plaintiff, and introduced in evidence by her, constituted prima facie proof that the deceased committed suicide, and, standing alone, would have defeated any recovery on her part. But they were of such a nature as that, since it was not made to appear that the insurer was prejudiced in its defense by relying upon the representations contained in the proofs, it was open to the plaintiff to show by other proof, or by the facts and circumstances of the case, that those representations were made under a misapprehension of the true facts, or in ignorance of material matters subsequently ascertained. Insurance Co. v. Newton, 22 ·Wall. 32; Hanna v. Insurance Co., 150 N. Y. 526, 44 N. E. 1099; "Talther v. Insurance Co., 65 Cal. 417, 4 Pac. 413. In all cases where such showing is satisfactory, such an admission is overcome. The burden of proof and the weight of evidence are, as said by the supreme court of Massachusetts in Bridge Co. v. Butler, 2 Gray, 132, "two very different things. The former remains on a party affirming a fact, and does not change in any aspect of the cause; the latter shifts from side to side in the progress of a trial, according to the strength and nature of the proofs offered in support or denial of the main fact to be established." In Heinemann v. Heard, 62 N. Y. 455, .the court of appeals of New York said:
"During the progress of a trial, It often happens that a party gives evidence tending to establish his allegatlon,-sufficlent, It maybe, to establish It prima It Is sometimes said that the burden of proof is then shifted. All that is meant by this is tbat there is a necessity of evidence to answer the prima facie case, or it will prevail; but the burden of maintaining the affirmative of the issue involved in the action Is upon the party alleging the fact which constitutes the issue, and this burden remains throughout the trial!'

See, also, Spencer v. Association, 142 N. Y. 509, 37 N. E. 62'5; Scott v.Wood, 81 Cal. 398, 22 Pac. 871; Clark v. Hills, 67 Tex. 141, 2 S. W. 356; Powers v. Russell, 13 Pick. 76; Tarbox v. Steamboat Co., 50 Me. 345; NibI. Ben. Soc. & Ace. Ins. § 336. We are ,of opinion that the burden assumed by the defendant, in its answer, of proving that the deceased came to his death with sui94.B'.-48

94· FEDERAL REPORTER.

cidal intent, remained on the defendant, and that it did notdevolve upon the pilliintiff to prove, by a preponderance' of evidence, that his death resulted from the accidental discharge .of the gun. It is furthe!" claimed on the .part of the plaintiff in error that the court should ba'Ve directed the jury to return a verdict for the defendant, on the ground that the death of the deceased should be treated as one "in violati(jn or attempted 'Violation of the criminal law." There ,are two answers to this point, either one of which is sufficient: First, the allegation of .the answer is not that Beck's death resulted from the viCllation or attempted violation of any criminal law of the state of Montana, but 'Only that at some indefinite time, "prior to said Beck taking his . own life, said Beck was attempting and did violate the criminal law of the state of Montana." In the next place, while the evidence showed that, very shottly prior to the time that he was killed, he was engaged in unlawful acts, it did not show with sufficient clearDel!lsthat he was so engaged at the time he met his death as tojustify,the court in taking the case from the jury. The judgment is atllrmed. !, '
lllRVARD PUB.

'll

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do.

,

v.'

:PUB. CO."

Circuit. June. 5,

Qircult Court ,of Appeals,

ACTION

, letters' introduced 111: eVidence by a plaintiff dn proof of the "j}0Iltract, RUed upon ,do not constitute In. tbemselves .a cwnpleted con,tract; mllJ;elynegotbttiops:w,ith a to a contract, and they are by oral testlqlOny;it Is p)."opel' to submit· to the jury the questlonwhether the contract alleged was in 'fact com'ple'ted, '

ON

TO

ESTAnitISB:'-QUESTION FOR JURY.

XQthe,Gi,rcuh Coriljt,j:}i,thEl DJstrict of Pep.,n,sylvani/t. :, .::", '' ; , Thomas Darlington, 'for! plaintllf,in terror. Jobn:G. tTohnson,f0r rdefendanHn error.: a.1ldDA:Liu\'S,' Ojrcuit TOJiit'Di!:itclH'J'udge. "--'::'.' .. : . . ' ,'"
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and BlJFFING'.' . ,(",:

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nA'Lt'jAS;OircuitJ'udge. errors have been assigned in this case, but it is not nece8Elarjr'to consi'der them in , The brief .on belHllt the plaiJ;J,tin: .in error presents its actuaLconte,ntion ' ill'four pGint8." 'The'fiJ:81i' an&second of these points rest upon the as'sertion that'lf;he inholding.that·certain' letters iii.,> f#.lfl1i '11.i d Mt.. of t.b. . . c.ons.titute it QQmplete,c91Jlt",act.U they, dig' not,.the was (l1early rightin,8ubmitting totooiijury whether,:uponAhe whole ,matter, the contract alleged. and sued upon had in fact been completed. The poconoket;'2SU.S. App.froOj::t7 C.C. A.309, 70 Fed. '640., ',We have cahHully' theSe letters; and :find in thetll nothing 'but negotiations hQvHfg ,a cotitract: prospectively in view. From; them' alone: it would be any Perfect agreement. <iTbey do notdistllok; a 'fb11 andfilfial: meeting 61' theinlindsof' the ,parties. If there was. Ii e(mtract,it was partly: in writing and partly 'oral.