Fidelity & Casualty Co. of New York v. Driver

• Decision Date: 09 December 1935
• Docket Number: No. 7881.,7881.
• Citation: 79 F.2d 713
• Parties: FIDELITY & CASUALTY CO. OF NEW YORK v. DRIVER.
• Court: U.S. Court of Appeals — Fifth Circuit

79 F.2d 713 (1935)

FIDELITY & CASUALTY CO. OF NEW YORK v. DRIVER.^*

No. 7881.

Circuit Court of Appeals, Fifth Circuit.

November 5, 1935.

Rehearing Denied December 9, 1935.

W. W. Alexander, of Thomasville, Ga., and R. W. Shackleford, of Tampa, Fla., for appellant.

E. K. Wilcox and T. G. Connell, both of Valdosta, Ga., for appellee.

Before SIBLEY and WALKER, Circuit Judges, and HOLMES, District Judge.

SIBLEY, Circuit Judge.

The policy sued on insured against "bodily injury sustained through accidental means and resulting directly, independently and exclusively of all other causes in * * * (d) death." The insured died instantly on November 29, 1933, from a gunshot wound evidently from his own gun while he was hunting doves. The answer denied that the death was caused by accidental means as alleged. It then went further and set up a provision of the policy which excluded death by suicide, sane or insane, and averred that this death was suicide. At the conclusion of all the evidence, the defendant moved for a directed verdict, which was refused, and took exceptions to the charges and refusals of the court to charge touching the burden of proof and the presumption against suicide.

It is not necessary to state the evidence at length. There was no eyewitness of the infliction of the wound. The insured was hunting with his grown son, who at the moment was out of sight circling a hill to flush the doves, which were expected to fly past the stand taken by the insured. The son heard only one shot from the father's vicinity, but was himself shooting, as were others at a greater distance. Having made his circuit, he found his father lying dead near a fence at a point where the wires of the "hog wire" netting were fastened to two posts near together, thus making a sort of ladder over which persons customarily climbed from one field to the other; there being no gate. Above the netting was one strand of barbed wire about 42 inches from the ground. The insured was lying on his back, with feet towards the fence, shot through the left breast, the lower part of his heart being penetrated and the shot stopping in the spine. The gun was on the other side of the fence with butt about 12 inches from the fence and muzzle pointing away from the fence and from the insured. There were bushes about the fence. One empty shell lay near the body, and another was found in the gun, which was a single-barrel "pump gun." The remains of a dove were found a few days later 45 yards beyond the fence under a tuft of bear grass; no one having hunted there in the meantime. The son says that he found his father's body lying perpendicular to the fence and the feet were three feet from it. Another witness says the pool of blood was two feet from the fence, and still another puts it three feet from the fence. The facts touching the life insurance, the health, the disposition, and the domestic and business circumstances of the insured in part tend to suggest suicide and in part to point strongly the other way. The request for a directed verdict rests principally on the contention that the physical facts are explainable only on the theory that insured, standing the length of the barrel from the fence, laid his gun on the barbed wire with trigger against the barb and muzzle against his breast and pulled the gun until it fired and he fell backward in his tracks; the gun recoiling over the fence and falling beyond it. While this theory would explain the physical circumstances, we think it reasonably possible to believe a theory of accident, to wit, that the insured desired to cross the fence to get a dove he had shot, or, better, to use the fence row as a screen, and put his gun over it with butt down and held it by the muzzle as he climbed over the wires, that he slipped and staggering back from the fence, dragged the gun by the muzzle so that the trigger hung on a bush or on the barbed wire and was discharged into his body; gun and body separating as the consequence of the shot as in the opposing theory. It is said that the feet at three feet from the fence are too far away for such a fall, but there are two replies to that. Two witnesses placed the pool of blood from the wound at two or three feet from the fence, so that the feet would have to be nearer according to them, making a conflict on the point of their exact location. Again, we find no evidence that tracks on the ground or other signs proved that the insured stood three feet from the fence and did not stagger back as the theory of accident supposes. Especially in view of the other circumstances, some of them strong arguments against the likelihood of suicide, we are of opinion that a question for the jury was made, and the judge did right in denying the motions for a directed verdict which were made by each side.

But we think the issue was not accurately and clearly submitted to the jury. In the portions of the original charge excepted to, the judge repeatedly told the jury that there was no doubt that the insured died by external violent means, and that the law presumed an accident, and the burden of proof was on the defendant to show a suicide. At the end he said: "Now, as I stated to you when I opened this charge, the case of the plaintiff has been made out and she is entitled...