[2] Considering the case in the aspect most favorable to defendant, and conceding that plaintiff assumed primarily the risk of remaining with the car, he had the right to expect that defendant would relieve him at the earliest possible moment consistent with reasonable care and diligence, and he did not assume any risk in that respect. It has been stated in argument that before the car was moved a number of trains passed the side track where the car was set out, and could have taken it up. The bill of exceptions clearly shows that all the evidence is not in the record, and we do not know upon what facts the jury acted, but, so far as the record discloses, there was no error in the charge as given, taking it as a whole, and with reasonable construction of the plain meaning of the judge's words, nor was it so involved as to have a tendency to confuse the minds of a jury of ordinary intelligence.

out, in charging the jury, the court expressly told the jury that the negligence relied upon by plaintiff was, first, in setting the car out in a comparatively isolated spot, and ordering the plaintiff to remain with it, and, second, in not removing him or rescuing him promptly from his exposed position. We think it was competent for the plaintiff to show as an incident to this exposure that he got wet in the performance of his duties, without any particular allegation to that effect in the petition. So much of the two requested charges as was not covered by the general charge was otherwise properly refused. We find no error in the record. Affirmed.

275 4.531,

cert. denie 72 X Ed. 110, 48 Sup. Ct. 28. x

BUSINESS MEN'S ASSUR. CO. OF AMERI

CA v. SCOTT. *

The nineteenth and twentieth assignments may be considered together. It appears from the record that there was evidence tending to show that plaintiff was instructed by the Pullman conductor to drain the car, and, after it was set out, he went outside and pulled a lever for that purpose. The wind was blowing, and the water was blown upon his legs, and wet them, and then it froze and turned to ice. There was also evidence tending to show that the car could have been drained from the inside without plaintiff incurring the danger of getting wet. On this state of facts defendant requested two charges, which were refused. Those charges were as follows:

"Plaintiff must recover, if at all, upon his claim set forth in his petition. And there is no claim in his petition that his cold and injuries grew out of his getting wet by reason of his attempting, under defendant's orders, to drain the car from the outside; hence you cannot consider this getting wet, if at all, by this means as negligence on the part of defendant, the Pullman Company, or as an element of damages."

"Should you believe that the plaintiff's injuries, if any, grew out of and was contracted by reason of his getting wet from the draining of the car on the outside, he cannot recover."

Plaintiff did not allege that his getting wet was caused by any particular act of negligence of defendant, and, as above pointed

1. Insurance

January 17, 1927.)

No. 7305.

465-Under Colorado statute, suicide while insane is death by "accidental means" (C. L. Colo. § 2532).

Under C. L. Colo. § 2532, suicide while insane is death by "accidental means," covered by an accident insurance policy providing for death benefits.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Accidental Means.]

2. Courts 366(1)-State court's construction of state statute controls federal courts. Federal courts are bound by construction of state statutes by state courts.

3. Insurance 465-Colorado statute held to preclude insurer from denying liability under accident policy, If insured committed suicide while insane more than one year after date of policy (C. L. Colo. § 2532).

In action on accident insurance policy, providing death benefits, but excluding suicide, sane or insane, C. L. Colo. § 2532, held to preclude insurer from questioning its liability, if insured committed suicide while insane, more than one year after date of policy.

Trial court should direct a verdict where the evidence is undisputed, or where, though conflicting, it is of so conclusive a character that the court, in the exercise of a sound judicial discretion, would set aside a verdict in opposition to it.

6. Insurance 668 (12)-Evidence of Insured's insanity at time of suicide held to warrant directed verdict in action on accident policy.

In action on accident insurance policy, evidence that insured was insane at time of suicide held so conclusive as to warrant court in directing verdict.

In Error to the District Court of the United States for the District of Colorado; John Foster Symes, Judge.

Action by Dora A. Scott against the Business Men's Assurance Company of America. Judgment for plaintiff, and defendant brings error. Affirmed.

Solon T. Gilmore, of Kansas City, Mo. (S. Harrison White, of Denver, Colo., and John Gilmore, of Kansas City, Mo., on the brief), for plaintiff in error.

John A. Cross, of Denver, Colo. (Con K. O'Byrne, of Denver, Colo., on the brief), for defendant in error.

Before KENYON, Circuit Judge, and SCOTT and SANBORN, District Judges.

JOHN B. SANBORN, District Judge. George C. Scott, the husband of Dora A. Scott, was the insured under an accident policy dated October 30, 1920, by which the assurance company agreed to pay to his beneficiary $5,000 in case the insured lost his life as a result of injuries caused exclusively by accidental means (excluding suicide, sane or insane). Premiums were due August 1st in each year. On August 1, 1923, the insured failed to pay the premium then due, but did pay it on August 20, 1923. It was accepted and the policy reinstated. On July 27, 1924, Scott shot himself. Dora A. Scott the plaintiff in the court below and the beneficiary named in the policy, demanded payment from the assurance company, which was refused, and she thereupon brought this suit. Her claim was that Scott committed suicide while insane, and that that was an accident covered by the policy. The testimony showed that Scott was the proprietor of a drug store in Denver, Colo., was happily married and had several children; that for several days before he shot himself he had acted strangely, had become unkind and indifferent to his wife and children, had used violent and abusive lan

guage in their presence, had neglected them friends and customers, and generally conductand his business, was rude and abusive to his ed himself in an unnatural and unusual way, entirely foreign to his former nature and manner of life. At the close of the plaintiff's case, the defendant demurred to the evidence and moved the court to direct a verdict in its favor. The court overruled the demurrer and denied the motion. No evidence was introduced by the defendant, and the court directed a verdict in favor of the plaintiff. The correctness of that disposition of the case by the court is challenged.

The policy in question was a Colorado contract. The laws of Colorado (Laws of 1913, p. 358, § 59; Comp. Laws of 1921, § 2532) provide: "From and after the passage of this act, the suicide of a policy holder after the first policy year, of any life insurance company doing business in this state, shall not be a defense against the payment of a life insurance policy, whether said suicide was voluntary or involuntary, and whether said. policy holder was sane or insane."

66

In Woodmen of the World v. Sloss, 49 Colo. 177, 112 P. 49, 31 L. R. A. (N. S.) 831, it was contended that this statute did not apply to the contracts issued by a fraternal or mutual association not organized for profit. The court said that it was the intention of the Legislature "that all life insurance contracts should receive the same construction, and be subject to the same statutory regulation and limitation, unless expressly exempted," saying: It reaches all insurance policies of all companies, without reference to their character, whether mutual organizations on the assessment plan, or otherwise. The statute is clear and specific, and is capable of but one rational construction, namely, that it was the intent and purpose of the Legislature to prevent all companies, of whatsoever kind or character, issuing life insurance contracts, from escaping payment thereon in the event of death, simply on the ground that the insured committed suicide."

The case of Officer v. London Guarantee & Accident Co., 74 Colo. 217, 220 P. 499, held that this provision of the statute is applicable to an accident policy providing for death benefits, and that the taking of one's life while insane is an accident.

The case of London Guarantee & Accident Co. v. Officer, 78 Colo. 441, 453, 242 P. 989, held that self-destruction is an accident when the insured is insane so as to be incapable of understanding the nature of the act which he commits, and the court approved the following instruction given by the trial court, defining insanity: "That unsoundness of mind

66

[1] The question of whether the beneficiary in such a policy as this would have been entitled to recover if the insured had committed suicide while sane was not considered in any of these cases, and the Supreme Court of Colorado has thus far held only that suicide while insane is death by accidental means and covered by an accident policy providing for death benefits.

This court, however, in the case of Continental Casualty Co. v. Agee, 3 F. (2d) 978, has stated that, under a similar statute of the state of Utah, there is no valid reason why an accident insurance company should be allowed the defense of suicide if the policy holder was sane, and denied the defense if he was insane at the time of the suicide; that effect cannot be given to the words of the policy and to the words of the statute, the one declaring lack of liability for death by suicide, and the other declaring that suicide shall be no defense, and that, in such a situation, the statute declaring the public policy of the state is paramount.

[2] We prefer to go no farther than the Supreme Court of Colorado has gone in construing the provisions of the statute. We think it was not the intention of the Legislature to make this statute applicable to accident policies providing for death benefits. There is a well-recognized distinction in the language of insurance between life policies and accident policies, and between companies writing life insurance and those writing accident insurance. There is no reason why suicide committed while sane should be covered by such a policy, because suicide while sane is in no sense an accident and has no place in accident insurance. There may be some justification for requiring an accident policy if general to, cover suicide while insane, which is death by accident, but there are many limited policies of accident insurance providing death benefits in case death is caused by a particular kind of accident. To such policies, such a requirement has no proper application. We think that it was the intention of the Legislature of Colorado merely to declare that life policies, as distinguished from accident policies, after the first policy year should be incontestable because of suicide. We are, however, bound by the construction which the Supreme Court of Colorado has given to the provisions of the statute in question. Therefore this policy, while it excluded, by its ex

press terms, suicide committed while sane or insane, in effect contained also the statutory provision that suicide while insane constituted no defense after the first policy year.

The case of Northwestern Life Insurance Co. v. Johnson, 254 U. S. 96, 41 S. Ct. 47, 65 L. Ed. 155, holds that a provision in a life policy declaring that the policy shall be void if, within a certain time, the insured, while sane or insane, shall commit suicide, and a provision making the policy incontestable after a certain time, are both to be interpreted as implying that suicide of the insured, sane or insane, after the time specified, shall not be a defense.

The case of Whitfield v. Etna Life Ins. Co., 205 U. S. 489, 27 S. Ct. 578, 51 L. Ed. 895, holds that the statute of Missouri, providing that suicide, unless contemplated when the policy is applied for, shall be no defense to actions on policies of life insurance, is a legitimate exercise of the power of the state; that a stipulation in a policy that the company shall only be liable for a portion of the amount in case of suicide not contemplated when the policy was applied for, is void and cannot be set up as a defense; that whatever tends to diminish a plaintiff's cause of action or to defeat the recovery in whole or in part amounts in law to a defense; that the manifest purpose of the statute is to make all inquiry as to suicide wholly immaterial, except where the insured contemplated suicide at the time he applied for the policy, and that any contract inconsistent with the statute must be held void.

[3] It is therefore apparent that, under the policy here in question, the insurer is precluded from questioning its liability to pay if the insured committed suicide while insane one year after the date of the policy. [4] The policy contained the provision that, where there had been a failure to pay any premium when due, its subsequent acceptance should reinstate the policy. The insured had failed to pay the premium on August 1, 1923, but did pay it on August 20, 1923, and it was accepted. His death occurred on July 27, 1924, or within one year from the reinstatement of the policy. The defendant contends that the reinstatement was not a restoration of the old policy in full force and effect, but was a new contract, and that, that contract not having been in force for a full year, the insurer was not precluded from setting up the defense of suicide. We cannot agree with this contention. The payment of the premium after the due date did not create a new contract of insurance, and had the effect simply of restoring the old contract. The only condition was that the company would not be

coin.

to defend than it would have been had the suicide occurred prior to the failure to pay the premium and after the lapse of the first policy year. 32 C. J. 1357; Mutual Life Ins. Co. of N. Y. v. Lovejoy, 203 Ala. 452, 83 So. 591; Mutual Life Ins. Co. of N. Y. v. Lovejoy, 201 Ala. 337, 78 So. 299, L. R. A. 1918D, 860; Mass. Ben. Life Ass'n v. Robinson, 104 Ga. 256, 30 S. E. 918, 42 L. R. A. 261; Monahan v. Fidelity Mut. L. Ins. Co., 242 Ill. 488, 90 N. E. 213, 134 Am. St. Rep. 337; Goodwin v. Provident Sav. Life Assur. Soc. Ass'n, 97 Iowa, 226, 66 N. W. 157, 32 L. R. A. 473, 59 Am. St. Rep. 411; Keller v. North American Ins. Co., 221 Ill. App. 81; Lovick v. Providence Life Ass'n, 110 N. C. 93, 14 S. E. 506.

[5] There are two classes of cases in which it becomes the duty of the trial court to direct a verdict: (1) That class in which the evidence is undisputed; and (2) that class in which the evidence is conflicting, but of so conclusive a character that the court, in the exercise of a sound judicial discretion, would set aside a verdict in opposition to it. Foye Lumber Co. v. Pennsylvania R. Co. (C. C. A.) 10 F. (2d) 437.

[6] The evidence in this case on the question of insanity was all one way. It tended to show a strange and irrational course of conduct on the part of the insured for several days before the suicide, culminating in that event. We think that the conclusion that the insured was insane at the time he shot himself is the only one which could have been reached, and that, if this question had been submitted to the jury and the jury had found for the defendant, it would have been the duty of the court to set aside the verdict.

It follows that the judgment must be affirmed. It is so ordered.

LOZANO v. UNITED STATES. (Circuit Court of Appeals, Fifth Circuit. January 31, 1927.)

No. 4856.

1. Customs duties 121-Definition of "mer. chandise," importation of which is forbidden in Tariff Act, held to include foreign coin (Tariff Act 1922, § 401 [Comp. St. § 5841d]).

Definition of "merchandise" in Tariff Act 1922, § 401 (Comp. St. § 5841d), as meaning goods, wares, and chattels of every description, including merchandise, importation of which is

[Ed. Note.-For other definitions, see Words

chandise.]

2. Customs duties 130(4)-Mexican gold coin, concealed on person with intent not to declare it, held not subject to forfeiture, if possession was disclosed as soon as opportunity was afforded (Tariff Act 1922, §§ 401, 461, 593 [Comp. St. §§ 5841d, 5841e30, 5841h13]). That Mexican gold coin, importation of which is not forbidden, and which is not subject to duty, was concealed on person of individual who was bringing it from Mexico, with intent not to declare it, did not make it subject to forfeiture under Tariff Act 1922, §§ 401, 461, 593 (Comp. St. §§ 5841d, 5841e30, 5841h13), if possession was disclosed to customs inspector as soon as opportunity to do so was afforded. 3. Customs duties 133 (7)-Whether Mexlcan gold coin concealed on person was seasonably disclosed to customs inspector held for jury (Tariff Act 1922, §§ 401, 461, 593 [Comp. St. §§ 5841d, 5841e30, 5841h13]).

Conflict in evidence respecting whether person bringing Mexican gold coin into country concealed on his person disclosed his possession thereof to customs inspector as soon as opportunity was afforded, so as not to make it subject to forfeiture under Tariff Act 1922, §§ 401, 461, 593 (Comp. St. §§ 5841d, 5841e30, 5841h13). held to present issue for jury.

WALKER, Circuit Judge. This was a libel for the forfeiture of "16,000 pesos Mexican gold coin." The libel, after alleging the seizure of the coin by a United States customs inspector on or about the 13th day of June, 1924, alleged that said inspector "holds the same subject to condemnation and forfeiture to the United States of America by reason of the fact that at the time of the seizure the said 16,000 pesos Mexican gold coin were concealed upon the person of said Emilio Garza Lozano, Jr., and were then and

there being smuggled from the Republic of Mexico into the United States across the footbridge at Laredo, Tex., without being submitted to customs inspection or being declared at the customs house, or entry being made thereof, as required by the customs laws of the United States." The evidence adduced was testimony as to the circumstances of the discovery of the gold coin by the customs inspector, and the seizure of it. J. R. Devine, the customs inspector, testified to the following effect: Emilio Garza Lozano passed the door of the customs office into which a person ordinarily would enter to declare merchandise. Witness hailed him, and he said "No" in reply to a question whether he had anything from Mexico to declare. After he came into the customs office, the witness felt a hard substance on his person, and, in reply to a question as to what it was, he said it was $16,000 gold Mexican money. Thereupon the coin was seized. The claimant's son, who was the person who brought the coin from Mexico, testified to the following effect: In bringing the money from Mexico he had it concealed on his person, because that was the only way he could bring it from Mexico, as the exportation of Mexican gold coin is forbidden by the law of Mexico. When he left Mexico, he did not intend to declare the money on this side of the river, because he did not think it was necessary, and knew there was no duty on it.

When he approached Mr. Devine, the customs inspector, who was standing at the door of the customs office, Mr. Devine motioned to witness, and told him to come in, and he went into the office. When asked by Mr. Devine if he had anything on, he said, "Yes, gold," and stated the amount he had. The court directed a verdict for the United States, and made the following statement to the jury: "While there is a conflict in the testimony of the government and that of the claimant as to whether the claimant seasonably declared the gold, all the circumstances and admissions of Emilio Garza Lozano strongly corroborate the government's case that Lozano did not make a declaration as required by statute and regulations before the seizure. The gold was concealed on the person of Lozano, and he admitted he had no intention of declaring it. His conduct further evidenced his purpose in passing the line without declaring, and, according to testimony of Devine, he had passed the line when he was stopped."

The forfeiture was adjudged under section 593 of the Tariff Act of 1922 (Comp. St. § 5841h13), which provides: "If any

person fraudulently or knowingly imports or brings into the United States, or assists in so doing, any merchandise, contrary to law, such merchandise shall be

forfeited and the offender shall be fined [etc.]. Whenever, on trial for a violation of this section, the defendant is shown to have or to have had possession of such goods, such possession shall be deemed evidence sufficient to authorize conviction, unless the defendant shall explain the possession to the satisfaction of the jury." 42 Stat. 982. The following is section 461 of that act (Comp. St. § 5841e30): "All merchandise and baggage imported or brought in from any contiguous country, except as otherwise provided by law or by regulations of the Secretary of the Treasury, shall be unladen in the presence of and be inspected by a customs officer at the first port of entry at which the same shall arrive; and such officer may require the owner, or his agent, or other person, having charge or possession of any trunk, traveling bag, sack, valise, or other container, or of any closed vehicle, to open the same for inspection, or to furnish a key or other means for opening the same." 42 Stat. 956.

That act (section 401 [Comp. St. § 5841d]) contains the following: "When used in this title the word 'mer

chandise' means goods, wares, and chattels of every description and includes merchandise the importation of which is prohibited.” [1-3] The statute's definition of merchandise is broad enough to cover foreign coin. Patton v. Brady, 184 U. S. 608, 22 S. Ct. 493, 46 L. Ed. 713. No phase of the evidence tended to prove a ground of forfeiture other than a failure to declare the coin or to submit it to customs inspection. A finding that the coin was declared as soon as an opportunity to do so was afforded was supported by a phase of the evidence. The facts that the coin was concealed on the person of the individual who was bringing it from Mexico and that that individual did not intend to declare it did not make it subject to forfeiture if his possession of it was disclosed to the inspector as soon as an opportunity to do so was afforded. United States v. One Pearl Chain (C. C. A.) 139 F. 513; United States v. One Trunk (C. C. A.) 184 F. 317; Rogers v. United States (C. C. A.) 180 F. 54, 31 L. R. A. (N. S.) 264. The importation of the coin was not forbidden, and it was not subject to duty. The allegation of the libel to the effect that the coin was not submitted to customs inspection and was not declared at the custom house was not