Brawner v. Royal Indem. Co.

• Decision Date: 17 December 1917
• Docket Number: 3120.
• Citation: 246 F. 637
• Parties: BRAWNER v. ROYAL INDEMNITY CO.
• Court: U.S. Court of Appeals — Fifth Circuit

246 F. 637

BRAWNER v. ROYAL INDEMNITY CO.

No. 3120.

United States Court of Appeals, Fifth Circuit.

December 17, 1917

John P Stokes, of Pensacola, Fla., and D. C. Campbell, of Jacksonville, Fla., for plaintiff in error.

A. C Blount, Jr., of Pensacola, Fla., and Shepard Bryan, of Atlanta, Ga. (Bryan, Jordan & Middlebrooks, of Atlanta, Ga and Blount, Blount & Carter, of Pensacola, Fla., on the brief), for defendant in error.

Before WALKER and BATTS, Circuit Judges, and GRUBB, District Judge.

WALKER Circuit Judge (after stating the facts as above).

In December, 1913, the Pensacola State Bank, of which the insured was president, failed. This was followed by the failure of the Brawner-Riera Company and the Pensacola Investment Company, both of which were enterprises in which the insured was interested. In consequence of disclosures which followed the failures, a criminal charge of embezzlement was made against Brawner, on the trial of which he was acquitted. Another consequence was that Brawner expressed apprehension that he would be prosecuted for certain overdrafts made by the Brawner-Riera Company on the failed bank. The failures were also followed by the assertion by Mrs. Claudia B. Brawner, the widow of a deceased brother of Brawner, of a claim or demand that the latter settle with or reimburse her for $11,000 ($7,000 of which was insurance money collected after her husband's death), which had been deposited to her credit in the bank of which Brawner was president, and which, without the knowledge or authority of the depositor, was paid out on checks signed, 'Claudia B Brawner, per F. E. Brawner. ' Prior to Brawner's death, he had not satisfied his sister-in-law or come to any settlement or understanding with her in regard to the claims she made against him. In the morning of the day of Brawner's death, she reached Pensacola, and, a few minutes before his death, stated to him over the telephone that she had come for a final settlement, a final understanding, and that she would like very much to see him and talk with him, and asked him to come to her hotel and see her. He replied that he would probably come at noontime.

Over objections made by the plaintiff, the court permitted a witness for the defendant to state that Brawner, in a conversation with the witness in the spring or summer of 1914, said that 'he had had so much trouble and he had been so hard pressed that it would have been better for him and his family if he could have got out of this trouble some time before, when he was in better shape than he was at this time in a financial way'; and permitted another witness to testify that Mr. Brawner, referring to the failure of the bank and the trouble and worry he had suffered on that account, said he felt very blue over the situation, and, one morning in the bank just after its failure, told witness he had gone to his desk once or twice and laid his hand on his revolver. The defendant's counsel asked another witness the following question:

'Had you any conversation with Mr. Brawner during the year previous to his death with reference to his business affairs? Since the failure of the Pensacola State Bank?'

The plaintiff objected to the admission of the testimony called for 'unless connected up and brought down to the time propounded, and because the time inquired about is too remote. ' The objection was overruled, and the answer of the witness was:

'I had conversations at various times. I was his family physician, dated back prior to the failure of the bank, when this real estate question or slump-- I can't tell you when this was, but it dated back beyond the time of the failure of the bank, and at various times up to the time of his death. He seemed in these conversations to be worried a good deal. Like a good many other people, he had real estate holdings bought on a high market, and he could not get rid of them; you all know how that is. He did say something about the failure of the Pensacola State Bank, but I don't know the times. I didn't jot it down or keep a memorandum of it. The result was that he was very melancholy, very much depressed, spoke of everything in a blue mood. That was up to a short time before his death. I had a conversation with him out to his house in the summer or fall, and he told me he was very much depressed, felt very blue over business. That was during the summer before his death.'

Exceptions were reserved to the rulings just mentioned.

We are not of opinion that those rulings were erroneous. The evidence was such as to furnish support for the conclusion that the disturbing and harassing effect upon Brawner of the situation in which he was placed in consequence of the failure of the business enterprises in which he had been engaged continued up to the time of his death. Certainly, not the least troublesome feature of that situation was the assertion by Brawner's sister-in-law of her grievance because of the loss of her fortune, due to her misplaced confidence in him and in the bank of which he was president. Just before he came to his death he was confronted with the necessity of dealing at once with that grievance, and it may be inferred that he was much disturbed as to the probable outcome of his sister-in-law's visit. Her statement over the telephone that she had come for 'a final settlement, a final understanding,' might well have been regarded by him as...