82 F.2d 799 (5th Cir. 1936), 7833, Travelers Ins. Co. v. Welch

Docket Nº:7833.
Citation:82 F.2d 799
Case Date:March 26, 1936
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 799

82 F.2d 799 (5th Cir. 1936)




No. 7833.

United States Court of Appeals, Fifth Circuit

March 26, 1936

Page 800

Howard B. Warren and Clare C. Clark, both of Shreveport, La., for appellant.

Arthur O'Quin and Leon O'Quin, both of Shreveport, La., for appellee.

Before FOSTER, SIBLEY, and HUTCHESON, Circuit Judges.

SIBLEY, Circuit Judge.

This appeal is from a judgment upon a policy of accident insurance, and raises questions whether a finding of death by suicide rather than accident is demanded, and whether refusal of the beneficiary to accede to a demand for an autopsy defeats recovery, and whether instructions to the jury on these subjects were correct. The evidence all goes to show that the insured was in good health, fond of his wife and young daughter, had employment and was in hopes of a profitable business, his circumstances being no more depressed than was common in the summer of 1933. On Saturday, August 5, 1933, he was a guest at the fishing camp of a friend, and had been in good spirits all afternoon. About dusk he and another friend went from the house fifty yards to the dock to look after some fish hooks set there. Insured had his pistol, and shot at a turtle, and allowed the little son of his host to shoot also. They were called in to supper, insured's companions going straight up the hill while insured walked around by the usual path. Just after the others reached the house another pistol shot was heard, but no notice taken of it. Soon the little boy called the attention of the others to the insured lying in the path ten steps from the house and in plain view. They went to him, and found him stretched out on his stomach or left side with head towards the house, and pistol in his left hand partly beneath the left hip, his thumb through the trigger guard. Four used cartridges were in the pistol, and no others. He was shot through the head, the ball having entered just above and to the rear of the left ear and passed out below the right ear. It had been raining, and the path was wet, slippery, and steep, and just below insured's feet was a mark two feet long looking as if his foot had slipped. The pistol could be fired without cocking it by a blow on the hammer or by pulling the trigger. There were no powder burns about the wound, showing, as the testimony indicated, that the pistol was over five or six inches away. Insured was right handed.

It is possible, as argued for the appellant, that insured voluntarily held the pistol in his left hand, pressed the barrel to his head, and fired it with his thumb on the trigger. It is also possible that he was carrying the pistol in his left hand as he rapidly climbed up the wet path, that he slipped and threw his left hand forward to catch himself and got his thumb in the trigger guard and involuntarily fired the pistol with his head down near his hand, the body afterward lurching further forward and falling upon the left hand. Almost anything can happen in a fall. The circumstances both of his character and life and his immediate surroundings do not suggest but strongly negative any purpose to take his own life. The case was easily one for the jury. We have examined the charges of the court on the general burden of proof and on the use of the so-called presumption against suicide, and do not find them seriously at variance with our holdings in Travelers' insurance Co. v. Wilkes, 76 F.2d 701, and Fidelity & Casualty Co. v. Driver, 79 F.2d 713.

Touching the autopsy, the policy provides under the heading 'Standard Provisions' as follows:

'8. The Company shall have the right and opportunity to examine the person of the insured when and so often as it may reasonably require during the pendency of claim hereunder, and also the right and opportunity to make any autopsy in case of death where it is not forbidden by law.'

Page 801

There is no express provision making this a condition of the insurance or declaring that the insurance is to be forfeited if an autopsy is denied. We find no Louisiana statute on the subject of autopsy except section 7615, Dart's La. Gen. Stats., which authorizes a coroner to hold one. Dart's La. Code Cr. Proc. art. 1295, declares it a crime to willfully desecrate a grave, tomb, or monument to the dead. In Choppin v. Dauphin, 48 La.Ann. 1217, 20 So. 681, 33 L.R.A. 133, 55 Am.St.Rep. 313, the Supreme...

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