Diamond v. New York Life Ins. Co.

• Decision Date: 31 December 1930
• Docket Number: No. 35202.,35202.
• Citation: 42 F.2d 910
• Parties: DIAMOND et al. v. NEW YORK LIFE INS. CO.
• Court: U.S. District Court — Northern District of Illinois

42 F.2d 910 (1930)

DIAMOND et al. v. NEW YORK LIFE INS. CO.

No. 35202.

District Court, N. D. Illinois, E. D.

Benjamin C. Bachrach and Walter Bachrach, both of Chicago, Ill., for plaintiffs.

Hamlin, Topliff & Cooper and Homer H. Cooper, all of Chicago, Ill., and Louis H. Cooke, of New York City, for defendant.

WOODWARD, District Judge.

This is a suit on a life insurance policy, on the life of Harry H. Diamond, for $5,000, dated November 26, 1930, whereby the defendant, in consideration of the payment of the premium therein stipulated, promised to pay to Nettie D. Diamond, the wife of the insured, "double the face of this policy 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 cause."

The policy contained the following additional provisions:

"This Double Indemnity Benefit will not apply if the Insured's death resulted * * * from any violation of law by the Insured."

"This Policy * * * shall be incontestable after two years from its date of issue except for non-payment of premiums."

"All benefits under this policy are payable at the Home Office of the Company in the City and State of New York."

The policies of insurance were prepared and executed by the defendant in New York City, were mailed to a Chicago branch office of the company, and, on December 20, 1920, were, by an agent of the Chicago branch office, delivered to Harry H. Diamond in East Chicago, Ind., where the first annual premium was paid in full. Thereafter, during the lifetime of the insured the premiums were regularly paid. Nettie D. Diamond, the wife of the insured and the beneficiary named in the policy, came to her death on February 15, 1923. On March 31, 1923, Harry H. Diamond assigned the policies to the plaintiffs.

On November 14, 1924, Harry H. Diamond came to his death, as stated in the stipulation, in the manner following: "11. On November 14, 1924, Harry H. Diamond came to his death while at Michigan City, Indiana. On that day and at that place certain persons, against the will and over the protest, and contrary to the intention of said Harry H. Diamond, forcibly placed him in a certain chair and by means of certain straps and other devices kept him in a seated position in said chair, and while the said Harry H. Diamond was so seated and bound and against his will, over his protest, and contrary to his intention, a certain other person caused a current of electricity of sufficient intensity and strength to cause death to be applied to and continued through the body of said Harry H. Diamond until he was dead."

It further appears from the stipulation, however, that Harry H. Diamond, the insured, was indicted, tried, and convicted of the murder of Nettie D. Diamond in a court of competent jurisdiction in the state of Indiana, and, pursuant to the sentence of the Indiana court, suffered death by electrocution at the Indiana State Prison at Michigan City, Indiana. The "certain persons" named in paragraph 11 of the stipulation, above quoted, were the warden and deputy wardens of the Indiana State Prison acting pursuant to the judgment and sentence of the Indiana state courts.

The face amount of the policy ($5,000) has been paid without prejudice to the right to maintain this suit.

A jury was waived and the cause submitted to the court for trial.

The controverted issues in this case are:

(1) Did the death result "from bodily injury effected solely through * * * accidental cause?"

(2) "Did the insured's death result * * * from any violation of law by the insured?"

To sustain the action it was incumbent on plaintiffs to prove that Diamond's death was the result of an "accidental cause." In order to sustain the averments of their declaration that Diamond came to his death through "accidental cause," plaintiffs offered paragraph 11 of the stipulation above quoted, and no other evidence on that question. That evidence, considered alone, shows that Diamond was sitting peacefully in his Indiana home when some gangsters entered his home, assaulted him, strapped him to a chair, and caused the lethal current of electricity to be passed through his body. That proof, standing alone, is sufficient to establish the fact of death by "accidental cause." To rebut the prima facie case made by plaintiff and to lead to the inference that Diamond's death did not result from an "accidental cause," defendant offered paragraph 12 of the stipulation, to the reception of which in evidence plaintiffs objected.

By paragraph 12 of the stipulation it appears that on March 21, 1923, Diamond was indicted in the criminal court of Lake county, Ind., for the murder, on February 15, 1923, of Nettie D. Diamond, his wife, on which he was tried, found guilty by the verdict of a jury of murder in the first degree, on which verdict the court sentenced the defendant to "suffer death by having passed through his body a current of electricity of sufficient intensity to cause death," the sentence to be executed by the warden of the Indiana State Prison. The judgment was affirmed by the Supreme Court of Indiana. Diamond v. State, 195 Ind. 285, 144 N. E. 250, 466. Agreeably to said judgment the defendant was executed by the warden of the prison.

Plaintiffs strenuously contest the admissibility of paragraph 12.

Any evidence which shows, or tends to show, the real cause of the death of Diamond is material, relevant, and competent. Plaintiffs' position would preclude the defendant from showing, as it has the right to show, the cause of Diamond's death. The application of the fatal current of electricity was but the culmination of a long chain of circumstances in which Diamond was involved. In this case it becomes material and relevant to inquire into the cause of Diamond's death in order to determine whether it resulted from an accidental cause, or otherwise. The record in the criminal case is admissible to prove the manner of his death. This conclusion is warranted by the holding of the court in the case of Burt v. Union Central Life Insurance Company, 187 U. S. 362, 23 S. Ct. 139, 141, 47 L. Ed. 216. The insured, in that case, was convicted of murder and was hung. In a suit on the policy the insurer defended on the ground that public policy forbade the enforcement of the contract. As bearing upon the question of public policy the record in the criminal proceedings was offered. In discussing the admissibility of the record in the criminal case, the court say:

"But the stress of the plaintiffs' contention rests on the allegation that the insured was unjustly convicted and executed; that he did not in fact commit the crime of murder or participate therein, and that if he did it was while he was insane and not...