
    EVIDENCE — ACCIDENT INSURANCE — CHARGE TO JURY.
    [Lorain (8th) Circuit Court,
    May 2, 1902.]
    Caldwell, Hale and Marvin, JJ.
    Travelers’ Insurance Co. v. Mary Rosch.
    1. Conclusive Presumption oe Death.
    The fact that a passenger on an ocean vessel was last seen about 10 o’clock at night, when the steamer was in mid-ocean, and was never seen nor heard of afterwards, though diligent search was made the next morning, is sufficient to raise a very strong presumption of his death and iustifies a iurv in finding that he is dead.
    
      2. Presumption as to Manner of Death.
    Death by suicide will not be presumed from the fact that a person was last seen about 10 o’clock at night on board a steamer in mid-ocean. The presumption is in favor of his having fallen overboard, either by accident or by some external force applied to him, and the death is within the risks assumed by an accident policy, insuring against death from bodily injury, effected through external, violent and accidental means.
    3. Rule to Preponderance oe Evidence.
    “Fair preponderance” of the evidence means “clear preponderance” which is more than is required, a preponderance being sufficient. Hence a refusal to give a request to charge “ you will not be warranted in finding a verdict for ' the plaintiff unless you shall find from a fair preponderance of the evidence,” etc., is justified.
    4. Refusal to Charge — Error not Prejudicial’
    A request to charge before argument as authorized by Sec, 5190, Rev. Stat., Sub-div. 5, is peremptory, but where the giving or withholding of a charge could not by any possibility or reasonable probability have affected the judgment obtained, the refusal before argument to give a charge is not prejudicial.
    Heard ON Error.
    H. H. McKeehan, for plaintiff in error.
    Metcalf & Cinniger, for defendant in error,
    cited:
    Upon the presumption, where plaintiff makes a prima facie case that the death of an insured person was occasioned by violent and external means, that such killing was accidental, and burden of proving otherwise is on . the insurance company. 5 N. Y. St. 566; Shultz v. Insurance Co., 40 Ohio St. 217, 223 [48 Am. Rep. 676]; 42 Md. 414; Insurance Co. v. Gridley, 100 U. S. 614; Fidelity & Casualty Co. v. Weise, 80 Ill. App. 499; Amer. Digest, 1899, B, p. 2503, section 306 ; Amer. Digest, 1900, B, p. 2421, section 225; Stephenson iv. Bankers Fife Assn., 79 N. W. Rep. 459 [108 la. 637]; Supreme Council R. A. v. Brashears, 43 Atl. Rep. 866 [89 Md. 624]; Standard Rife & A. Ins. Co. v. Thornton, 100 Fed. Rep. 582 [40 C. C. A. 564]; Travelers’ Ins. Co. v. Wyness, 34 S. E. Rep. 114; Coburn v. Insurance Co., 13 N. E. Rep. 604 [145 Mass. 226]; Freeman v. Insurance Co., 12 N. E. Rep. 372 [144 Mass. 572]; Piedmont & A. Insurance Co. v. Ewing, 92 U. S. 377.
   MARVIN, J.

The case of the Travelers’ Insurance Company of Hartford, Connecticut, against Mary Rosch is here upon a petition in error, seeking to reverse a judgment which Mary Rosch obtained against the insurance company in a case tried in the court of common pleas of this county, it being a jury trial. With the petition in error a bill of exceptions is filed, containing all the evidence that was produced in the court of common pleas.

The plaintiff below, Mary Rosch, having obtained a verdict against the defendant, a motion was made by the defendant for a new trial, which was overruled, an exception was taken to that, and it is said there was error on the part of the court in overruling such motion, and error also in the proceedings of the court at the trial.

After the evidence was all introduced, a request was made that certain propositions of law be given in charge to the jury before the argument of counsel. Some of these requests were given before argument, and part, the court said, would be taken under advisement, and later the court would determine whether or not to give these. After argument the court did give the last proposition, to which attention will be called later.

Section 5190, sub-section 5, Rev. Stat., is the one which provides that if request to charge certain propositions shall be made' before argument, such propositions shall then be given or refused. This statute was construed in Electric Railroad Co. v. Hawkins, 64 Ohio St. 391 [60 N. E. Rep. 558].

Before determining whether there was error in declining to give the proposition which the court did not give before argument, but did give later, a little attention should be given to facts.

John Rosch who was a resident of this city, took passage in June, 1897, upon an ocean steamer, “ The Friesland,” at New York, for some port in Germany. Shortly before he embarked on this voyage he took out a policy ot insurance in the plaintiff company, which is a corporation authorized to issue accident insurance policies. It insured him against death resulting within ninety days from bodily injuries effected during the term of this insurance through external, violent and accidental means, and the beneficiary named in the policy is Mary Rosch, the defendant in error.

On the night of June 29, 1897, while the ship was in mid-ocean, John Rosch, who was a steerage passenger with some two hundred other steerage passengers, was seen at ten o’clock in the evening on that steamer^ so far as any evidence here is found, he has never. been seen since living or dead.

The steamer did not reach Germany for several days after that. Diligent search was made on the morning of June 30, for John Rosch, which was without avail; he was not on the steamer on that morning.

The claim on behalf of the plaintiff below is, that from this it necessarily follows he is dead, and we think that this presumption is well taken. It is possible that Rosch is living, as it is, possible that if one sits in this court room and fires a pistol at another, and that other be found immediately thereafter dead with a bullet in his body, that he died of heart failure just before the bullet struck him; but everybody would find, every jury and every sensible man in the world would find in the case last stated that the man died from the bullet wound. And it seems as though we could not doubt that every sensible man with these facts before him would find this man is dead.

It is said, on the part of the plaintiff in error, that it is but an inference that he is dead. It is an inference, such an inference as carries absolute conviction to every thinking man.

Now it is said that to hold he died by external violence is an inference upon an inference — which ought not to be allowed ,* but the jury found as they necessarily must have found, that this man was dead.

And if the question had been directly put to them, did he die by drowning ? it can hardly be doubted that they would have answered in the affirmative, and if he died by drowning he died by that external violence which is insured against in this policy, unless it was a case of suicide.

The policy provides that if the death is by suicide there can be no recovery.

This man, if he died by drowning fell into the ocean, either by accident or by the violence of some body else or he cast himself into the ocean. What is the presumption, in that case? in favor of suicide or against it ? Is there any doubt that the presumption is against suicide and in favor of his having fallen in, either by accident or by some external force applied to him? And if that is so, then there should be a recovery here; the company would be bound.

Upon the facts it seems clear that the jury came to the conclusion to which every other man, who will examine this record would come; that this man died of drowning on that night of June 29 or the morning of June 30, 1897, and that such drowning was the result of an accident to him.

Now as to the request made to charge before argument.

The case of Electric Railroad Co. v. Hawkins, to which attention has been called, holds as to Sec. 5190, Rev. Stat., requiring a charge when requested to be made before the argument, that it is peremptory where such request is made. Of course if a request is made to charge some proposition which is not the law, that must not be given. But it is said here the court came to the conclusion that what was requested was the law, because it thereafter gave it; but if the giving or withholding of the charge could not by any possibility or by any reasonable probability have afiected the result of this case, then it was not prejudicial to refuse to give it before argument.

If it would have been no prejudice to the plaintiff in error to have declined to give it to the jury at all, then it was not prejudicial to decline to give it before the argument.

The charge requested by the defendant below before argument reads in these words:

“ Gentlemen of the jury, you will not be warranted in rendering a verdict for the plaintiff unless you shall find from a fair preponderance of the evidence, as I shall hereafter define that term:
“ First. That John Rosch died during the time covered by the policy of insurance, and
“Second. That his death was caused by violent and accidental means.”

It is enough to say as to this, that the request included one thing at least which it is-settled, in this court, and I think by the Supreme Court of the state, certainly by this court and by the circuit court next east of us, the sixth, which the party was not entitled to have given.

It may be said to be technical, but this court and the court of the circuit east of us have held that it is objectionable to charge that “ You will not be warranted in rendering a verdict for the plaintiff unless you shall find from a fair preponderance of the evidence,” etc.

Judge Laubie, in one of the cases, discusses to a considerable extent the words “fair preponderance,” and says it means the same as “ clear preponderance ” of the evidence, which he says is not necessary; that preponderance is enough. So the court would have been justified in refusing that because of the word “fair,” and might have been justified in refusing the entire request for the same reason.

The court did give before argument, that in order to a recovery the jury must find:

First: That John Rosch died during the time covered by the policy of insurance, and
Second: That his death was caused by violent and accidental means.

He gave those two. He did not give until after argument the balance : “ If you find that he died during such time, but further find that it is just as reasonable to infer, from the facts and circumstances in proof, that he died from voluntarily exposing himself to unnecessary danger as that he died from accidental and violent means, not specifically excepted in the policy, then your verdict must be for defendant.”

That was given later; not given however that it must be done by a fair preponderance of the evidence, but the court gave, “ if you find he died during such time, etc.,” using the exact language, except as to the word “fair."

It was not error, prejudicial to the plaintiff in error, for the court to refuse to give in the language requested, just what was-requested before the argument. After the argument the court gave the proposition properly, so that there can be no fault found to the prejudice of the plaintiff in error in the charge.

What has already been said indicates what must be done with the case. The jury were warranted in coming to the conclusion they did from the facts.

There was no error on the part of the court in its refusal to charge before argument the requests in exactly the language they were requested; there was no error in the charge, and the judgment is affirmed.  