Connecticut General Life Insurance Company v. Breslin

• Decision Date: 04 June 1964
• Docket Number: No. 20524.,20524.
• Citation: 332 F.2d 928
• Parties: CONNECTICUT GENERAL LIFE INSURANCE COMPANY, Appellant, v. M. Patricia BRESLIN, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

332 F.2d 928 (1964)

CONNECTICUT GENERAL LIFE INSURANCE COMPANY, Appellant, v. M. Patricia BRESLIN, Appellee.

No. 20524.

United States Court of Appeals Fifth Circuit.

June 4, 1964.

J. Thomas Gurney, Jr., and Edward L. Stahley, of Gurney, Gurney & Handley Orlando, Fla., for appellant.

William H. Corbley, Allen K. McCormick, Orlando, Fla., for appellee.

Before MAGRUDER,^* JONES and GEWIN, Circuit Judges.

JONES, Circuit Judge:

T. J. Breslin was insured under a group life insurance policy which provided for the payment to his wife, M. Patricia Breslin, the appellee here, of $20,000 upon his death, and an additional payment of the same amount if his death resulted from bodily injuries "effected directly and independently of all other causes through external, violent and accidental means. * * *" The insured met his death on February 25, 1962, as the result of being stabbed with a knife in the hand of Mrs. Breslin's father, John J. Lynch. The appellant paid the amount of the basic insurance coverage. Mrs. Breslin brought suit in a Florida court for the accidental death benefit. On June 26, 1962, the appellant filed its petition for removal to the United States District Court on the ground of diversity of citizenship. On the same day the appellant filed an answer which, among other things, denied the allegation of the complaint that the insured died as a result of "bodily injuries effected directly and independently of all other causes through external, violent and accidental means. * * *" On August 17, 1962, the appellant asked for leave to file an amended answer which added an additional allegation that the death of the insured was not effected by accidental means under the terms of the policy, a copy of which was attached, but "was effected by causes reasonably foreseeable on the part of" the insured. The amended answer asked for a trial by jury. The court allowed the amendment except that portion demanding a jury trial. The original answer contained no such demand.

On October 11, 1962, the parties stipulated that the only fact issue to be tried was whether the insured died as a result of injuries effected by external, violent and accidental means within the policy provisions. On the same day, the appellant moved for a continuance on the ground that John J. Lynch, who was a vital witness, was in the hospital and would be unable to attend the trial, that his deposition had been taken for discovery but it did not fully cover the factual situation. No order was entered on the motion but the trial was delayed. A further deposition of Lynch was taken by the appellant on October 16, 1962, while he was in a hospital. The case was called for trial before the court without a jury. Each of the parties answered "Ready."

The appellee, as plaintiff, was the only witness on her own behalf. The appellant, as defendant, produced one witness who testified that, some weeks before the fatal event occurred, Lynch had directed to Breslin a threat that "I will fix your feet." and another witness who testified as to the amount of light in the hallway where the occurrence took place. The only other evidence for the appellant was the two depositions of Lynch. The trial court made the following findings:

"The insured, T. J. Breslin, died on February 25, 1962, as a result of a stab wound inflicted on the same date.

"At the time of his death, T. J. Breslin, the insured, and his wife, the Plaintiff, had been separated but he came to the Plaintiff\'s home at times for the purpose of visiting their minor children. The insured came to Plaintiff\'s home Sunday, February 25, 1962, to take the children for a ride. While at the home he brought up the subject of a marital reconciliation and physically abused the Plaintiff on her refusal. The Plaintiff was crying when her father arrived at the home. He went into the house and inquired as to what had happened and received no answer. Plaintiff went into the kitchen followed by the insured who apologized to her for mistreating her. Her father, John Lynch, then followed the couple into the kitchen. An altercation occurred between John Lynch and the insured after which the insured left the home.

"The plaintiff then went into the bathroom to wash her face and her father remained in the kitchen. Shortly thereafter the insured returned to the house, passed the kitchen door and proceeded down the darkened or partly lighted hallway to the bathroom wherein Plaintiff was standing. He requested her to get the other child, who was asleep in her room, and accompany him and the two older children. She refused.

"When the insured passed the kitchen doorway on his way down to the bathroom, John Lynch picked up a carving knife for his own protection and walked toward the bathroom doorway in the hall where the insured was standing. John Lynch is the only living person who witnessed what happened in the hallway when the insured received the wound which caused his death. John Lynch\'s testimony, which was presented by the Defendant in deposition form because the witness was too ill to attend the trial, described the incident as follows:

"`This is when he turned around and came toward me. But what he was going to do, I don\'t know. I didn\'t know what he was going to do. Maybe he was going to shove me out of the way and get out. I don\'t know; but that is when the accident happened . . . it was during that time that the accident happened. I couldn\'t believe it. I was so surprised when he backed over, and I kind of heard him say, "Oh, I am cut." didn\'t cut him. I don\'t know how it happened. I couldn\'t tell you. All I did was holding that knife to keep him at arm\'s length; at least to keep him off me, and I never felt nothing. My arm never moved, none at all, in any direction."\'

"John Lynch did not willfully attack the insured nor did he intentionally stab him. The facts and circumstances surrounding the situation when the insured received his death wound as they appear from the foregoing testimony offered by the defendant are just as consistent with the Plaintiff\'s theory of accidental death as they are with the Defendant\'s claim that the death was a result of an altercation and therefore, I find from all of the evidence presented that the death of the insured, T. J. Breslin, resulted from bodily injury effected directly and independently of all other causes through external, violent and accidental means, and that said death resulted independently and exclusively of all other causes, as defined in the insurance policy."

The court concluded that the "death of the insured, T. J. Breslin, resulted from bodily injuries effected directly and independently of all other causes through external, violent and accidental means, * * *." The court awarded judgment against the appellant for $20,000, for attorneys' fees in the amount of $7,500, and for costs. On appeal it is asserted that the motion for continuance should have been granted, and that the amendment to the answer demanding a jury trial should have been allowed. The appellant challenges the findings and conclusions that the insured's death resulted from accidental means within the terms and provisions of the policy.

The original answer of the appellant, which did not contain a demand for a jury trial, contained a denial of the allegations of the appellee's complaint that the insured died as a result of accidental means within the policy coverage. The amended answer, which contained a demand for a jury trial, was different from the original answer only by the addition of an affirmative allegation that the death of the insured was not effected through accidental means within the policy provisions, and that death was effected by causes reasonably foreseeable on the part of the insured. The amended answer did not raise any issues which were in any material way different from those presented by the original answer. In such a case the waiver originally made remains effective and the subsequent demand is ineffective. The appellant could have, but did not, apply for a trial by jury under Rule 39(b). Fed.Rules Civ. Proc. 28 U.S.C.A., rather than asserting a right that had been waived under Rule 38. Roth v. Hyer, 5th Cir. 1944, 142 F.2d 227, cert. den. 323 U.S. 712, 65 S.Ct. 38, 89 L.Ed. 573. There was no error in striking the belated jury demand from the amended answer.

It is clear that there was no error in denying the requested continuance. The continuance was sought because the witness Lynch could not attend trial. It was not urged in the motions for continuance, nor in the supporting affidavit of counsel, that it would be necessary or even desirable that the demeanor of the witness be observed by the trial judge. When the case was called and the appellant answered "Ready" there was nothing said or done to indicate that the appellant was not satisfied with the testimony of Lynch as it appeared in his depositions. The granting or refusal of a motion for a continuance rests within the sound judicial discretion of the trial court and its ruling on such a motion will not be disturbed on appeal unless an abuse of discretion is shown. Peckham v. Family Loan Company, 5th Cir. 1959, 262 F.2d 422, cert. den. 361 U.S. 824, 80 S.Ct. 70, 4 L.Ed.2d 68. It does not appear that there was any abuse of discretion in the refusal of the district court to continue the case.

The other specifications of error go to the question of whether the district court committed reversible error in finding that the death of the insured was effected by accidental means within the terms of the policy. The master policy was a contract with Breslin's employer, The Martin Company. The master policy was not, it seems, in evidence. It is not before us. We do not know where it was delivered or whether it contained any provisions as to the law to be applied in its construction. See Boseman v. Connecticut General Life Insurance Co., 301 U.S. 196, 57 S.Ct. 686, 81 L.Ed. 1036, 110 A.L.R. 732, affirming ...