42 F.2d 910 (N.D.Ill.), 35202, Diamond v. New York Life Ins. Co.

Docket Nº:35202.
Citation:42 F.2d 910
Party Name:DIAMOND et al. v. NEW YORK LIFE INS. CO.
Court:United States District Courts, 7th Circuit, Northern District of Illinois

Page 910

42 F.2d 910 (N.D.Ill.)

DIAMOND et al.

v.

NEW YORK LIFE INS. CO.

No. 35202.

United States District Court, N.D. Illinois, Eastern Division.

Date Not Given

Benjamin C. Bachrach and Walter Bachrach, both of Chicago, Ill., for plaintiffs.

Hamlin, Topliff & Cooper and Homer H. Cooper, all of Chicago, Ill., and Louis H. Cooke, of New York City, for defendant.

Page 911

WOODWARD, District Judge.

This is a suit on a life insurance policy, on the life of Harry H. Diamond, for $5,000, dated November 26, 1930, whereby the defendant, in consideration of the payment of the premium therein stipulated, promised to pay to Nettie D. Diamond, the wife of the insured, 'double the face of this policy upon receipt of due proof that the death of the insured resulted directly and independently of all other causes from bodily injury effected solely through external, violent and accidental cause.'

The policy contained the following additional provisions:

'This Double Indemnity Benefit will not apply if the Insured's death resulted * * * from any violation of law by the Insured.'

'This Policy * * * shall be incontestable after two years from its date of issue except for non-payment of premiums.'

'All benefits under this policy are payable at the Home Office of the Company in the City and State of New York.'

The policies of insurance were prepared and executed by the defendant in New York City, were mailed to a Chicago branch office of the company, and, on December 20, 1920, were, by an agent of the Chicago branch office, delivered to Harry H. Diamond in East Chicago, Ind., where the first annual premium was paid in full. Thereafter, during the lifetime of the insured the premiums were regularly paid. Nettie D. Diamond, the wife of the insured and the beneficiary named in the policy, came to her death on February 15, 1923. On March 31, 1923, Harry H. Diamond assigned the policies to the plaintiffs.

On November 14, 1924, Harry H. Diamond came to his death, as stated in the stipulation, in the manner following: '11. On November 14, 1924, Harry H. Diamond came to his death while at Michigan City, Indiana. On that day and at that place certain persons, against the will and over the protest, and contrary to the intention of said Harry H. Diamond, forcibly placed him in a certain chair and by means of certain straps and other devices kept him in a seated position in said chair, and while the said Harry H. Diamond was so seated and bound and against his will, over his protest, and contrary to his intention, a certain other person caused a current of electricity of sufficient intensity and strength to cause death to be applied to and continued through the body of said Harry H. Diamond until he was dead.'

It further appears from the stipulation, however, that Harry H. Diamond, the insured, was indicted, tried, and convicted of the murder of Nettie D. Diamond in a court of competent jurisdiction in the state of Indiana, and, pursuant to the sentence of the Indiana court, suffered death by electrocution at the Indiana State Prison at Michigan City, Indiana. The 'certain persons' named in paragraph 11 of the stipulation, above quoted, were the warden and deputy wardens of the Indiana State Prison acting pursuant to the...

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