Detroit, Mich. Judgment for plaintiff, and himself, and seemed to be mildly resisting defendant appeals. Affirmed. Johnston & Jones, of Fresno, and Myrick & Deering, of San Francisco, for appellant. M. K. Harris and Geo. Cosgrave, both of Fresno, for respondent. the efforts of his companions to get him into the hotel. This testimony, however, was contradicted by plaintiff. No motive for suicide was shown or attempted to be shown, and the evidence shows without conflict that Wilkinson was a man of happy disposition; that he was free from domestic or business troubles; and that he was cheerful and in excellent health up to the time of his death. LENNON, J. This action was brought upon a policy which insured the plaintiff's husband, John H. Wilkinson, against death or disability resulting from accident. From a judgment in plaintiff's favor defendant ap-kinson, in taking his revolver from the drawpeals. On October 5, 1914, Wilkinson was found dead in his bedroom by his wife. There was no direct evidence as to the cause of the death, and the findings and judgment of the trial court rest upon the following uncontroverted facts and circumstances: Wilkinson's wife had gone to his room upon hearing the report of a revolver. The body was found prostrate in front of a white enameled washbowl, with a bullet hole in the forehead. There were no powder marks or burns on the face. A revolver lay near the knee, about three feet from the right hand. There was a medicine chest above the bowl with a mirror on its door. On the lower part of this mirror, and on the woodwork below it, was a spattering of blood and brain matter. There was no such spattering on the bowl or in the water which was in the bowl. A small drawer below the mirror, which had theretofore been known to contain Wilkinson's revolver, as well as his shaving materials, was open, with the leather holster still lying in the drawer. There was a nick on the edge of the washbowl, together with a black mark, as if some hard object had fallen, chipping and discoloring the surface. These marks were not upon the bowl prior to the shooting. The bullet went straight into the forehead, slightly tearing the skin. Such a wound, in the opinion of defendant's expert witnesses, would cause one to crumple up and fall immediately to the floor, and blood would spurt back out of the wound. The absence of powder marks on the flesh could be accounted for by the experts only upon the theory that the revolver had been placed directly against the skin. On the other hand, a firearms expert testified on behalf of the plaintiff that a shot fired within a foot of the object penetrated would leave powder marks on the surface around the hole; while, if the muzzle of the weapon were pressed against the surface, "it will burn and smudge-crock," and be very apt to explode the gun. He also testified that Wilkinson's revolver could have been discharged by a blow on the hammer, and that it was light on the trigger. One of defendant's witnesses testified to having seen Wilkinson going into the hotel where Wilkinson lived on the evening of the shooting; that he was in the company of two persons; [1] Plaintiff's theory is that the circumstances attending the killing showed that Wil er above the bowl, had accidentally dropped the weapon, and that it had fallen onto the bowl in such a position as to cause it to discharge a bullet into his head. Defendant's contention, on the other hand, is that there was no evidence in the case to support the theory of accident, but that, on the contrary, the circumstances shown absolutely precluded the possibility of accident, and therefore compel the conclusion that the deceased committed suicide. We cannot concur in this contention. It is neither inherently incredible nor altogether impossible that Wilkinson could have been accidentally shot and still have fallen backward. It is conceivable that he could have been standing erect, with his head inclined forward toward the bowl. In view of the reflexes of the human body, it is also conceivable that his head was in a sufficiently different position by the time blood spurted from the wound so that the blood discharged would reach a higher place than that from which the shot was fired. Moreover, it is not clear from the testimony that the body did fall straight backward, as defendant assumes, rather than crumpled up, as its witnesses testify would be the case if deceased had been bending forward at the time of the shot. It is not inconceivable that the gun was accidentally discharged while being taken from the drawer, which was just below the mirror and the spattering of blood. In brief, we do not feel justified in holding as a matter of law that, under all the circumstances and the possible inferences to be drawn therefrom, the evidence adduced upon the whole case is not sufficient to support the finding of the jury, implied from their verdict, that the death of the deceased was due to accident, and not to suicide. [2, 3] The fact that plaintiff assumed in her testimony at the inquest immediately fol lowing her husband's death that he had committed suicide, as did the newspaper reporter who wrote an account of the episode, can have no conclusive effect, since this was no more than an inference in each instance. While it is possible that, had we been sitting as the jury in this case, we should have come to a different conclusion from that at which the jury did arrive, still, upon the whole case, it is not open to us to say, as a matter of law, that there was no sufficient evidence (180 P.) Appellant assails the following instruction to the jury: "Where the insured is found dead under such circumstances that death may have been due to suicide or to accident, the presumption is against suicide and in favor of accident." [4] The contention that there is no such presumption in this state cannot be sustain ed. This presumption necessarily and logically follows from the statutory presumption "that a person is innocent of crime or wrong." Code Civ. Proc. § 1963, subd. 1; Jenkin v. Pacific Mut. Life Ins. Co., 131 Cal. 121, 63 Pac. 180. [5] The instruction does not assume a fact not in evidence. The instruction was sim ply directed to the issue, plainly pointed by the pleadings, as to whether the decedent met his death through accident or suicide. [6] It did not operate to shift the burden of proof from plaintiff to defendant, nor was it contradictory of the court's other and gen eral instruction that the burden of proof was on the plaintiff to prove death by accident. As was said by Mr. Justice Sloss from the bench during the oral argument of the case: "There is no inconsistency in saying the burden of proof is upon one party, and at the same time that certain circumstances will fur nish a presumption which is an element of proof or item of evidence to be weighed in determining whether he has sustained that burden." In other words, the instruction condemned in the case cited was predicated upon the erroneous assumption that the evidence of the cause of death was wholly circumstantial and was equally susceptible to one of two opposing theories, whereas the instruction under theories of accident and suicide, and did no review here merely postulates the opposing jury that, when weighing the evidence, they more in our opinion than correctly charge the should give due weight to the presumption which the law indulges against suicide. Such an instruction is appropriate and proper in cases where the determination of the cause of death is dependent wholly upon circumstantial evidence which will fairly support Weil v. Globe, etc., Co., supra; Travelers' either a finding of accident or one of suicide. Ins. Co. v. McConkey, 127 U. S. 661, 8 Sup. Co. v. Thornton, 100 Fed. 582, 40 C. C. A. Ct. 1360, 32 L. Ed. 308; Standard Life, etc., Other grounds which have been urged for a reversal of the judgment were, we think, correctly disposed of by the appellate court for the First district in an opinion written by Mr. Justice Kerrigan, and we therefore adopt that opinion, which is as follows: "It is claimed that the demurrer to the com-, plaint should have been sustained; that certain warranties were untrue, for which reason Admittedly the facts of the present case exclude every cause of death save those of the policy never attached to the risk; and that no written proof of death was given as required accident or suicide, and it is conceded that by the policy. the solution of the question as to how the decedent came to his death is dependent entirely upon circumstantial evidence. In this particular the case is distinguishable from the case of Weil v. Globe, etc., Co., 179 App. Div. 166, 166 N. Y. Supp. 225, where there was the direct and uncontradicted evidence of several witnesses that the deceased deliberately jumped in front of a moving train. In that case the trial court charged the jury that: "If the facts are equally susceptible of either construction-that is, suicide on the one hand; accident on the other-it will be presumed that the death was the result of an accident, and not of a wrongful intent." "The contention that the demurrer to the complaint should have been sustained is based upon the ground that it does not appear therefrom that the warranties set forth in the policy were true, and for the further reason that the complaint simply alleges that oral proof of death was given, whereas the policy required written proof. [7] "With regard to the first objection it is sufficient to say that the warranties referred to were not promissory in character. Where nothing is required to be performed by an insured under a warranty, there is no necessity for averring performance, for the reason that there is nothing to be performed, and under such circumstances an averment of performance would be useless and without meaning. When a thing is warranted by the insured to exist or a representation to be true at a time when a policy done all that he can do. Cowan v. Phoenix Ins. becomes consummated as a contract, he has Co., 78 Cal. 181, 20 Pac. 408; Berlinger v. Travelers' Ins. Co., 121 Cal. 451, 53 Pac. 922. It is only where the insured has warranted that he will do something that an averment of performance is required. This instruction was criticized and condemned by the court of last resort, chiefly because it ignored the direct evidence that the deceased voluntarily threw himself in front of an approaching train, and invoked the aid of a presumption "which is available only for the purpose of taking the place of direct testimony with the burden of proof," [8] "Nor do we think that there is any merit and also because it was tantamount to charg- in the argument that the averment in the coming the jury that, if the evidence was equally plaint with reference to loss under the policy balanced, the law permitted the presumption ject recites that plaintiff gave to defendant comis insufficient. The allegation upon this subto weigh in favor of the plaintiff, and there-plete oral proof of the facts and circumstances by shifted the burden of producing a pre- surrounding the death of insured, and that, ponderance of the proof to the defendant. though requested, defendant refused to furnish 180 P.-39 to plaintiff the blank form of proofs, and denied all liability upon the policy, and informed plaintiff that it was useless for her to make proof of loss. Such denial of liability constitutes a waiver of the condition requiring proof of loss. Civ. Code, § 1440; McCollough v. Home Ins. Co., 155 Cal. 659, 102 Pac. 814, 18 Ann. Cas. 862; May on Insurance, 469. "The further objection that the complaint is insufficient for the reason that it does not appear therefrom that the waiver of the provision requiring proof of loss was written upon or attached to the policy is disposed of in the opinion of Mr. Justice Sloss in McCollough v. Home Insurance Company, supra, and requires no discussion. [9] "Nor do we think the evidence supports appellant's contention that there was a lack of authority in the agents in making the waiver. We do not deem it necessary to review in detail the voluminous evidence upon the subject. Briefly, the evidence is as follows: One C. F. Briggs was the Pacific Coast superintendent of defendant company, and had been acting as such for 25 years. Geo. R. Andrews was an agent of defendant at Fresno. Briggs had authority to look after the interests of the company generally. It was within his power to issue policies without consulting the home office, and also to take up policies. The general course of the company in the Pacific territory was to act through Briggs. It was his business, among other things, to look into all cases when accidents happened and a liability was claimed against the company. He had the power to appoint agents to solicit insurance, and appoint. ed Andrews. He also had power to settle cases for the company. The secretary of the company testified that, when defendant wanted to cancel a policy and obtain its return from a policy holder, Briggs made the demand on the Pacific Coast, and that, when denial of liability in death claims was made, the general custom of the company was to convey the information direct from the home office to the policy holder, or by special authority to Briggs; and that, when they wished to offer the return of a premium that had been paid, they had Briggs return it. "Upon receiving news of the circumstances of the death of insured Briggs instructed Andrews to pay back the premium amounting to the sum of $60, and demand the policy. This Andrews did, at the same time advising the plaintiff that he did it under instructions from Briggs. The company, in the meantime being fully advised of all the proceedings, and within the time when proof of loss might have been furnished, ratified the action of Briggs in refusing to pay the plaintiff's claim and instructed him to recover the policy. This is evidenced by the correspondence between the company and Briggs. The action of the company could hardly be expected to be otherwise from the facts it had before it. "We are further of the opinion that the claim that the evidence is insufficient to support the verdict because certain warranties contained in the policy were untrue is without merit. The untruthfulness of the warranties complained of consists in: (1) That the insured gave the age of his wife as 26 when she was in fact 30; (2) that insured was not at the time of the issuance of the policy a member of a firm, but was an officer of a corporation of the same name. [10, 11] "With reference to the first alleged false warranty, the policy provided as an additional benefit for a limited insurance in favor of the beneficiary if such person was over the age of 18 years and under the age of 60. It is true that courts have generally held a warranty as to age of the insured to be material. Here, however, the policy, as plaintiff contends, is separable into two distinct contracts of insur. ance-one insuring the deceased; the other insuring the plaintiff herself. Any misrepresentation respecting the beneficiary could in no manner have any effect upon the contract insuring deceased. The false statement here made was therefore a matter not material to the contract of insurance of deceased, and had nothing to do with it. It is undoubtedly true, as claimed by the appellant, that an agreement between insurer and insured that the falsity of any statement in an application for insurance will avoid the policy is binding, and that in such case the question of its materiality is of no conse quence; but the policy here involved contained no such provision. "The alleged breach of warranty concerning the occupation of deceased was surely not material, and appellant's contention with reference thereto requires no discussion." For the foregoing reasons, the judgment is affirmed. 2. PLEADING 236(3)—AMENDMENT-DISCRETION OF Court. The amendment of a pleading during trial lies within the sound discretion of the trial court, and may be allowed though the defense set up has been known for a considerable time before the trial. 3. APPEAL AND ERROR 1071(6)-HARMLESS ERROR-FAILURE TO FIND. In a husband's action to enjoin sale on execution against his wife of property conveyed to him by the wife through a third person, failure to find whether the property originally deed (180 P.) ed by the husband to the wife was paid for by the husband out of community funds held harmless to the husband; there having been no dispute on the question, as both the husband and wife testified that property was so paid for. 4. TRIAL 397(1)—FAILURE TO FIND-IM MATERIALITY. the rent as provided in the lease. It appears that Mrs. Ward had had some trouble in collecting the rent for the months of April and May, 1914, and that on May 1, 1914, she had threatened to levy against the abovementioned property, standing at that time in Mrs. Tolbard's name, if the rent were not paid. The plaintiff denies, however, that the transfer of the property to Mrs. Thompson, and thence to him, was made for that reason. Mrs. Ward recovered judgment against Mrs. Tolbard for the amount of the unpaid rent, and execution was levied on the prop In husband's action to enjoin sale on execution against his wife of property conveyed by wife to him through third person, failure to find that judgment against wife on which execution was issued was on her own contractual obligation, and that the husband was not interested in it, was immaterial, where there was a finding that the wife had made the contract, one oferty above described as parcels A and B. lease, independently, and on her own responsibility. Department 1. Appeal from Superior Court, Los Angeles County; Leslie R. Hewitt, Judge. The plaintiff by this action seeks to restrain the sale of this property, alleging in his complaint that it is community property, and therefore not subject to his wife's debts. The defendants denied that the property is community property, and alleged that it is the separate property of the wife, conveyed fraudulently to avoid payments of the rent under the lease. In an amended answer it was alleged further that the plaintiff, by Action by W. S. Tolbard against John C. Cline, as Sheriff of the County of Los Angeles, and Lillie Ward. From judgment for defendants, and from an order denying his representations and conduct, is estopped his motion for new trial, plaintiff appeals. Judgment and order affirmed. Alfred W. Allen and Fred W. Heatherly, both of Los Angeles, for appellant. Lee C. Gates and W. S. Allen, both of Los Angeles, for respondents. LAWLOR, J. This action was brought to enjoin the defendants from selling certain property against which an execution had been levied. The case was tried before the court sitting without a jury. Judgment was entered in favor of the defendants. The plaintiff appeals from the judgment and from the order denying his motion for a new trial. to deny his wife's title to the property. The court found: That the property in question had been deeded to Mrs. Tolbard, that "Parcel A" stood of record "as her separate property," and that "Parcel B" was in her name presumptively as her separate property. That at the time the lease of the apartment house was entered into between Mrs. Tolbard and Mrs. Ward the plaintiff had told Mrs. Ward that this property was owned by his wife, and that Mrs. Ward might look to that property as security for the payments of rent to become due under the lease. That Mrs. Tolbard had taken Mrs. Ward to see the property and pointed it out as her own separate property. That, relying upon the conduct, representations, and statements made by the plaintiff and his wife, Mrs. Ward had entered into the lease without any bond to secure the payments of the rent, which she would not otherwise have done. That, having made such representations with full knowledge and notice of all the facts and circumstances of the lease, and regarding the title of record of the property, plaintiff had full knowledge and notice of the fact that Mrs. Ward was extending credit to Mrs. Tolbard upon the faith of the representations and statements and conduct of the plaintiff and Mrs. Tolbard as to the ownership of said properties, and therefore plaintiff is estopped to deny that she was the owner. That Mrs. Ward had difficulty in collecting the rent for the apartment house for the months of April and May, 1914, and that she had told Mrs. Tolbard that she On May 4, 1914, Mrs. Tolbard deeded the would proceed to collect the rent out of the property to Mrs. Iola Thompson, who later property of Mrs. Tolbard if the rent were transferred it to the plaintiff. Thereafter, not paid. That the transfer of the properand for the months of August to December, ties through Mrs. Thompson to the plaintiff 1914, inclusive, Mrs. Tolbard failed to pay was made with the "intent and design to On March 7, 1913, Mrs. Lillie Ward, one of the defendants herein, leased to Mrs. R. A. Tolbard, wife of the plaintiff, an apart ment house for "five years from March 7, 1913, at $300 per month, payable in advance." The rent for the first and last month of the term was paid on the execution of the lease. At the time of making the lease the two pieces of property which are involved in this action stood in the name of Mrs. Tolbard. This property is situated in the city of Long Beach. "Parcel A," also referred to as the "home place," was deeded to Mrs. Tolbard "as her separate estate," while the deed to "Parcel B" was silent as to whether or not it was to be her separate estate. The evidence showed without conflict that both parcels were paid for by the plaintiff out of community funds. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 612 180 PACIFIC REPORTER funds, and that the husband and wife botk The sequester said properties and to hinder this defendant, Lillie Ward, from subjecting said properties to the payment of the rent then due, or to become due under the terms of the lease of said apartments." That the plain[1] But that case is not in point. tiff, on or about the last day of April, 1914, knowing that his wife was unable to pay the record shows that there was evidence on rent, and anticipating trouble with Mrs. which to base both of these findings-that Ward over the matter, with the intent and the deeding of the property to Mrs. Tolbard design to defraud Mrs. Ward and to keep was intended as a gift to her, and that the her from subjecting the properties to the transfer to Mrs. Thompson was made with payment of any rent due or to become due the intention to defraud Mrs. Ward. The under the lease, counseled with one E. J. plaintiff testified that he knew that his wife G. W. Starr, a notary public of Long Beach, regard- was to take title. "I told my wife she could ing the transfer of the title of the said prop- have the property deeded to her." erties, and authorized Starr to make such Scott, the real estate dealer, testified that to him Mrs. Tolbard directed that the property be disposition of the properties as might seem best to keep Mrs. Ward from deeded to her "as her separate property." selling them to satisfy her claims for rent. Mrs. Ward testified that the plaintiff told That Starr accordingly, on May 4, 1914, her at the time they were about to enter incaused deeds to be made, transferring the to the lease that Mrs. Tolbard owned parcels His actions and conduct indicate properties from Mrs. Tolbard to Mrs. Thomp- A and B. son, and that on the same day Starr caused that a gift to his wife was intended; for deeds to be made conveying the said prop- while it is true that both the plaintiff and erties from Mrs. Thompson to the plaintiff. his wife testified to the contrary, and that That the deeds from Mrs. Tolbard to Mrs. the property had been put in Mrs. Tolbard's Thompson were recorded and returned to name merely for the sake of convenience, yet Starr, but that the deeds from Mrs. Thomp- the fact that no attempt was made to put son to the plaintiff were never recorded. the property in the plaintiff's name until That these deeds, in a packet with other Mrs. Ward had threatened to levy against papers, were, in the latter part of June, it to collect her rent, taken in the light of 1914, given by Starr to the plaintiff, who put all the other circumstances, is evidence the packet away without examining the tending to prove that the intention was to contents. That the deeds to Mrs. Thomp- make a gift.' son and from her to the plaintiff were without consideration, and were never delivered, and that the property is still presumptively the separate property of Mrs. Tolbard. From these findings the court concluded as matter of law that the plaintiff is not entitled to an injunction restraining the defendants from selling the said properties on execution. The appellant's chief contention is that there was no evidence on which the court could base its finding that the property involved in this controversy was the separate property of Mrs. Tolbard, and that the transfer to Mrs. Thompson was for the purpose of defrauding Mrs. Ward. Section 164 of the Civil Code provides: "All other property acquired after marriage by either husband or wife, or both, is community property; but whenever any property is conveyed to a married woman by an instrument in writing, the presumption is that the title is thereby vested in her as her separate property." The testimony of Mrs. Ward that Mrs. Tolbard said to her on May 16, 1914, "Well, Mrs. Ward, I have fixed my property now so you can't touch it; go ahead," tends to support the finding of fraud in the transfer of the property to Mrs. Thompson. Mrs. Tolbard denied having made such a statement, but her denial only created a conflict in the evidence, which the court resolved against In fact, the record shows that there her. was a substantial conflict in the evidence throughout, and we cannot hold that the findings of the court are without support. As already stated, the defendants in their amended answer claimed that the plaintiff is estopped to deny that the property was The the separate property of his wife. plaintiff contends that this defense should not be entertained for the reasons that the was improperly allowed, amended answer that the defense of estoppel was not suffiìciently pleaded, and that the evidence does not support the finding of estoppel. [2] Appellant urges that the court erred Fulkerson v. Stiles, 156 Cal. 703, 105 Pac. 966, 26 L. R. A. (N. S.) 181, was an action in permitting the amendment to the answer brought by the husband against a judgment to be filed during the trial, especially so creditor of his wife to quiet title to land since the defense of estoppel set out in the standing in her name, against which an exe- amendment was known for a considerable cution had been levied for debts of the wife time before the trial. It is well established incurred before the property was deeded that the amendment of a pleading lies withto her. It was held that in the absence of in the sound discretion of the trial court. evidence of a gift, the facts that the prop-In Pierson v. McCahill, 22 Cal. 131, this erty had been bought out of community court said: |