Preferred Acc. Ins. Co. of New York v. Barker

• Citation: 93 F. 158
• Decision Date: 28 February 1899
• Docket Number: 739.
• Parties: PREFERRED ACC. INS. CO. OF NEW YORK v. BARKER.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

93 F. 158

PREFERRED ACC. INS. CO. OF NEW YORK v. BARKER.

No. 739.

United States Court of Appeals, Fifth Circuit.

February 28, 1899

This was an action brought in the United States circuit court for the Eastern district of Louisiana by Mrs. Harriet Barker widow of J. W. Barker, against the Preferred Accident Insurance Company of New York, upon a policy of insurance of that company held by him in favor of his wife. Verdict was for $3,000, the full amount of the policy. The case was brought here by said insurance company upon a writ of error. For former report, see 32 C.C.A. 124, 88 F. 814.

Mr. J W. Barker held an accident policy for $3,000 with the Preferred Accident Insurance Company. It was what is known as a 'restricted policy.' It insured him solely against the effects of bodily injury caused solely by external violent, and accidental means. A further clause provided that it did not extend to or cover any cause of disability or death whatever, except where the claimant shall furnish to the company direct and positive proof of such disability or death which resulted proximately and solely from accidental causes. Death by freezing was excepted. Clause 2 of conditions in the policy provides that, 'unless direct and positive proof of death or injury and duration of disability shall be furnished to the company within the following limit of time: (1) As to fatal injuries, within two months from the date of death, * * * then all claims based thereon shall be forfeited. ' Other conditions named in the policy were numerous, but become unimportant under the assignment of errors in this case.

Testimony taken at the trial tended to show that Barker lost his life as follows: Quite early in the morning of the 26th of November, 1896, he went hunting near the Rigolets, and was last seen alive about 7 o'clock in the morning. About 5 o'clock that evening one J. G. Sanford found him dead, standing in mud and water up to between his knees and hips, leaning across his boat, and grasping in his hands bunches of grass that had been growing near the shore. The ducks he had shot, together with the decoys he had been using, his coat, and other property were arranged in the boat. The bow of his boat was resting upon shore. Sanford, who was a tall strong man, lifted him out with considerable difficulty, and placed him in the boat. It was shown that Barker had been in good health, and that he was an experienced hunter. The evidence also showed that the day was very cold; that it had been raining hard; that Barker was a small man, weighing about 120 pounds. There were no marks of violence on the body, and Dr. Fenner testified, from his examination, he came to the conclusion that Barker died from being exposed to the cold weather, etc., as the result of being bogged up, and was unable to extricate himself, and avoid the effects of the cold weather and water.

Hewes T. Gurley, for plaintiff in error.

Solomon Wolff, for defendant in error.

Before McCORMICK, Circuit Judge, and BOARMAN and SWAYNE, District Judges.

SWAYNE District Judge (after stating the facts as above).

At the close of the testimony defendant's counsel moved the court to instruct the jury peremptorily to find a verdict for the defendant on the grounds following:

'First, that the proofs of death were not

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