Boggan v. Provident Life & Accident Ins. Co.

• Decision Date: 09 November 1935
• Docket Number: No. 7708.,7708.
• Citation: 79 F.2d 721
• Parties: BOGGAN v. PROVIDENT LIFE & ACCIDENT INS. CO. OF CHATTANOOGA, TENN.
• Court: U.S. Court of Appeals — Fifth Circuit

79 F.2d 721 (1935)

BOGGAN v. PROVIDENT LIFE & ACCIDENT INS. CO. OF CHATTANOOGA, TENN.

No. 7708.

Circuit Court of Appeals, Fifth Circuit.

November 9, 1935.

Erle Pettus and Erle Pettus, Jr., both of Birmingham, Ala., for appellant.

Wm. S. Pritchard and James W. Aird, both of Birmingham, Ala., for appellee.

Before FOSTER, HUTCHESON, and WALKER, Circuit Judges.

HUTCHESON, Circuit Judge.

This is an appeal prosecuted in forma pauperis by the administrator, from a verdict and judgment that he take nothing by his suit on an accident policy.

Appellee moves to dismiss the appeal because neither in fact nor in form is it warranted by the poor persons statute, title 28, § 832, USCA under which it was taken. As matter of form it is argued against the petition¹: (a) That the administrator is not a citizen of the United States within such statute, whose oath entitles him to its benefits; (b) further, that the petition, not showing that neither the estate nor any person interested is able to pay or secure the costs, but merely that the administrator is not and being sworn to by the administrator, and not by the beneficiaries, is defective; (c) that it does not show, as required by the statute, that the cause it seeks to prosecute is a meritorious one.

As matter of fact it is urged against the appeal: (a) That both the creditors of the estate and the widow of the deceased, as beneficiaries subject to its debts, are solvent and amply able to pay or secure the costs of the appeal; and (b) that there is no merit in it, because it plainly appears that not only does the record fail to show the accidental death of the deceased by drowning, but it affirmatively and indisputably shows that his death was voluntary and suicidal.

We cannot agree with appellee that an administrator or legal representative may not prosecute an appeal in forma pauperis. The decisions it cites, Reed v. Pennsylvania Co. (C. C. A.) 111 F. 714, Clay v. Southern Railway Co. (C. C. A.) 90 F. 472, are to the contrary as the general practice is. Cunningham v. United States (C. C. A.) 67 F.(2d) 714. We think it plain, however, that the petition on which the appeal was granted is defective, both in its failure to negative the ability of the estate to pay the costs, and its failure to have attached to it the affidavits of the persons to be benefited by the appeal that they were not able.

We think it is plain too, that the appeal, while taken in good faith, is wholly without merit. The statute under which the appeal is prosecuted is a statute of grace. It extends to those embraced in it, but only to those, Quittner v. Motion Picture Producers & Distributors (C. C. A.) 70 F.(2d) 331, the privilege of prosecuting, without paying or securing the costs, appeals which are substantially meritorious, and which, because of the appellant's poverty, could not be prosecuted if bond or security were required. It may not be used by persons not poor persons, in whose interest, though not parties to the suit, the litigation is being conducted, to prosecute an appeal without giving bond or costs. Neither may it be used to prolong a plainly fruitless litigation by prosecuting a plainly meritless appeal. Kinney v. Plymouth Rock Squab Co., 236 U. S. 43, 35 S. Ct. 236, 59 L. Ed. 457. Because of this want of merit, appellee's motion to dismiss will be granted.

While appeals may not be prosecuted with effect except where good and sufficient bond is given, or the poor persons statute is complied with, an appellate court will not ordinarily dismiss an appeal for defects in these particulars, without first affording opportunity for their correction. Reed v. Pennsylvania Co., supra. The District Judge having granted the petition on the showing deemed sufficient by him, and the appeal papers having been prepared and lodged here in reliance on his order, we would not, but for the entire lack of merit in the appeal, dismiss it without first giving appellant an opportunity to comply with the poor persons statute, or give bond. Since the record plainly shows that the appeal is wholly without merit, we will not put appellant to the amendment of his appeal papers to no purpose, but will now dismiss his appeal.

Our reasons for concluding that the appeal is without merit may be briefly stated.

The evidence is without dispute. It shows inescapably that appellant's decedent, confronted with a claim of shortage, committed suicide by drowning himself in the Warrior river. The policy on which appellant sued is in substance identical in its terms with the policy we had before us in the Wilkes Case, 76 F.(2d) 701, 705, The burden upon appellant here was the same as the burden upon Wilkes in that case. The proof in this case fails to present a single fact or circumstance which would sustain a finding that the deceased came to his death by violent, external, and accidental means. More, it definitely and positively establishes in an irrefutable and inescapable way that his death was suicide. More completely than was the case in New York Life Ins. Co. v. Trimble (C. C. A.) 69 F.(2d) 849, 850, the...