Burkett v. New York Life Ins. Co.

• Decision Date: 04 March 1932
• Docket Number: No. 6372.,6372.
• Citation: 56 F.2d 105
• Parties: BURKETT v. NEW YORK LIFE INS. CO.
• Court: U.S. Court of Appeals — Fifth Circuit

56 F.2d 105 (1932)

BURKETT v. NEW YORK LIFE INS. CO.

No. 6372.

Circuit Court of Appeals, Fifth Circuit.

February 10, 1932.

Rehearing Denied March 4, 1932.

Robt. L. Bullard and Luther A. Smith, both of Hattiesburg, Miss., for appellant.

William H. Watkins, of Jackson, Miss., for appellee.

Before BRYAN, SIBLEY, and WALKER, Circuit Judges.

WALKER, Circuit Judge.

This was an action by the appellant, the beneficiary named in a policy issued by the appellee on the life of R. Lee Burkett, who was the husband of the appellant. By the terms of the policy the sum of $5,000 was payable upon appellee's receipt of due proof of the death of the insured, and an additional $5,000, called "Double Indemnity," was payable upon receipt of due proof "that the death of the insured resulted directly and independently of all other causes from bodily injury effected solely through external, violent and accidental means and occurred within ninety days after such injury." The declaration alleged that on the 1st day of February, 1931, the insured was accidentally killed by a gunshot wound in the head; that the death of the insured was a direct result of that gunshot wound, independent of all other causes, and that death resulted immediately. The appellee put that allegation in issue, and gave notice that in the trial of the cause the appellee, if required to do so, would offer evidence to prove that the insured came to his death solely and only as a result of a gunshot wound intentionally inflicted upon himself. In the trial it was admitted that the single indemnity provided for in the policy had been paid. Evidence without conflict showed the following: At the time of his death the insured was city mail carrier in Columbia, Miss., and had held that position for five years. He lived there with his wife and children in a home owned by himself. He was a man of good character, temperate in his habits, a member of a church, industrious and thrifty. He was devoted to his wife and children, was agreeable in his relations with others, and was highly esteemed in the community in which he lived. Diagonally across the street from the insured's residence was a store kept by Mr. Frank M. Jennings, at which the insured was accustomed to stop every day, frequently more than once a day. About noon on Sunday, February 1, 1931, the insured was in that store. He talked to Mr. Jennings about a gun, and asked him about a double barrel shotgun he saw there. He said some one tried to break in his home one night, that he did not have a gun then, and that he needed one. He did not buy the gun. He said it did not suit him.

The appellant testified that it was about a year and a half before the insured's death that some one tried to break into the house, that since that time no other such attempt was made, and the insured had had no gun in the house. During that Sunday afternoon a brother of the deceased visited him at his home, and the two went from there to the post office, where the insured did some work with his mail for the next day. When they left the post office, they went to the office of Dr. Thompson, the insured's family physician. Dr. Thompson tested the insured's kidneys and said they were all right. They then went to a drug store and insured got a prescription filled. Then they returned to the insured's home. After being at his home about ten minutes, the insured went to the Jennings store, which faced west. At that time Mrs. Jennings was alone in the store. The insured said he wanted to see Frank. Mrs. Jennings said her husband was sick, and was back lying down. The insured said he was sick too. After standing in the store awhile and looking across the street, the insured went behind a counter running east and west, parallel with the north side of the store, in doing so going between that counter where it was opposite the end of another counter running north and south and parallel with the rear or east side of the store. Mrs. Jennings stated that she did not recall that she had ever seen the insured go behind the counter before. He stopped where the gun was lying on a shelf behind the east and west counter, and, as he picked it up, said, "I wanted to see Frank about this gun." Mrs. Jennings said she was positive her husband was asleep. Without asking permission to take the gun away, the insured took it and walked from behind the east and west counter and then on behind the north and south counter. While he was behind the east and west counter, he unbreeched the gun. Mrs. Jennings saw that it then was unloaded. In going from where he got the gun the insured passed where there were some loaded shells kept for sale, some in open boxes. He went on behind the north and south counter to the door near the southeast corner of the store which opened upon a concrete pavement in the rear of the store, which pavement was about level with the store floor, and was about five feet wide and eight feet long, the room in which Mr. Jennings then was being located north of that pavement. After the insured got outside the store, the report of a gun was heard.

The insured's body was found lying across the cement pavement about three and a half feet from the door through which he had gone in leaving the store. The top of his head from just above his right ear was blown off. Blood and some of his brains were found on the roof, which was about eight feet high. The gun was lying on the walk about three feet from deceased's body; the butt being towards the body. It contained an exploded shell in the right-hand barrel. The shell was of a kind kept in the store for sale. The gun was a cheap one. To shoot it the hammer had to be cocked and the trigger pulled. It was usual for Mr. Jennings to keep it unloaded. He stated that he thought it was not loaded. In the rear of the store next...