Aetna Life Ins. Co. v. Tooley

• Decision Date: 02 December 1926
• Docket Number: No. 4760.,4760.
• Citation: 16 F.2d 243
• Parties: ÆTNA LIFE INS. CO. v. TOOLEY.
• Court: U.S. Court of Appeals — Fifth Circuit

16 F.2d 243 (1926)

ÆTNA LIFE INS. CO. v. TOOLEY.

No. 4760.

Circuit Court of Appeals, Fifth Circuit.

December 2, 1926.

Maury Kemp and Michael Nagle, both of El Paso, Tex., and Harry Preston Lawther, of Dallas, Tex., for plaintiff in error.

J. G. McGrady, of El Paso, Tex. (Lea, McGrady, Thomason & Edwards, of El Paso, Tex., on the brief), for defendant in error.

Before WALKER, BRYAN, and FOSTER, Circuit Judges.

BRYAN, Circuit Judge.

On February 1, 1924, the Ætna Life Insurance Company issued three policies of insurance, for $25,000 each, on the life of William L. Tooley. In the event of death, one of the policies was made payable to the wife of the insured and the other two to his estate. On March 19, 1924, the insured died, and his wife brought two separate suits on the policies, one in her individual capacity, and the other as executrix of her husband's estate. These suits were consolidated for trial.

Each of the policies contains the following clause: "If the insured shall commit suicide within one year from the date hereof, while sane or insane, this policy shall be null and void, except for the legal reserve then existing hereon." Defendant, relying on this clause as a defense, pleaded that the insured committed suicide, and tendered back the legal reserve existing at the time of his death.

The trial resulted in a verdict and judgment for the plaintiff in each case for the full amount sued for. The only assignment of error we find it necessary to consider complains of the trial court's refusal, at the close of all the evidence, to give a peremptory instruction to the jury to find for the defendant.

Tooley, the insured, was found dead in his automobile about noon. The automobile was parked near the curb on a public street in a new, but thickly settled, suburb of the city of El Paso, Tex., by the side of a wide-spreading cedar tree, which obstructed the view in the direction of his home, less than two blocks away. Signs of tires dragging on the street indicated that the brakes had been applied for a distance of about 60 feet immediately before the automobile had been brought to a stop. The automobile was of the touring car type, and all curtains were up, except, perhaps, the one that belonged on the right side by the front seat. Tooley's body was lying or leaning on the front seat, with his head toward the right side, his left hand on the driving wheel on the left side, his right hand under his body, and his right foot on the foot brake.

When the body was lifted up, a .38 caliber Colt's pistol, on a .45 frame, was found under it. The pistol was not self-cocking, but was of the ordinary single action type, that is cocked by hand before firing. There were two empty cartridges in the chamber, one of which had been freshly exploded; the other one appearing to have been empty for a long time. Tooley had been shot through the head with a .38 caliber bullet. The wound entered the right temple and came out about an inch above the left temple. There were powder burns in and immediately around the wound where the bullet entered, but they did not extend more than an inch away from the wound, indicating that the weapon which produced death was held against, or within a few inches of, the right temple. If that weapon had been held at a greater distance, either the powder burns would have scattered further away from the wound, or there would not have been any. The bullet with which Tooley was killed made an indentation in one of the bows of the car, at a point somewhat above and to the left of where the head of one sitting in the driver's seat would have been, and was found inside the car. There was a circular imprint on the right temple just outside the wound, and the undertaker gave it as his opinion that it was caused by some object pressing against the temple after death had occurred.

There was no evidence indicating that Tooley had been engaged in a struggle, or that any of his personal effects had been interfered with or taken. He owned several pistols, and there was some evidence that he had been in the habit of carrying a pistol on his person or in his automobile whenever he went to his ranch or other places in the country. Tooley had been a successful business man, engaged principally in banking and cattle raising. He had recently resigned as active vice president of a national bank, severed his connection with a mortgage company, of which he was president or vice president, and organized a mortgage company, having in view the leaving of an established business to his two sons. He had no financial troubles, and his home life was happy. However, for a year or more immediately preceding his death, he had been in bad health, had become despondent and obsessed with the mistaken idea that his old friends and business associates had ceased to value his friendship or to be interested in his welfare.

A short time before his death, he had undergone an operation on his tonsils, and had stated to one of...