Fidelity & Cas. Co. of New York v. Egbert

• Decision Date: 13 December 1897
• Docket Number: 938.
• Citation: 84 F. 410
• Parties: FIDELITY & CASUALTY CO. OF NEW YORK v. EGBERT.
• Court: U.S. Court of Appeals — Eighth Circuit

84 F. 410

FIDELITY & CASUALTY CO. OF NEW YORK v. EGBERT.

No. 938.

United States Court of Appeals, Eighth Circuit.

December 13, 1897

Mr Charles Offutt (De Lagnel Berier, on the brief), for plaintiff in error.

H. J Davis (H. D. Estabrook and M. L. Learned, on the brief), for defendant in error.

Before SANBORN and THAYER, Circuit Judges, and RINER, District Judge.

SANBORN Circuit Judge.

This writ of error challenges a verdict and judgment upon a policy of accident insurance. Augustus A. Egbert, the insured, died from gunshot wounds on April 30, 1895. By the terms of the policy in suit the Fidelity & Casualty Company of New York plaintiff in error, insured Egbert for the benefit of his wife, Luthera L. Egbert, the defendant in error, against bodily injuries sustained through external, violent, and accidental means, but provided in its policy that, in case of injuries wantonly inflicted upon himself by the insured or inflicted upon himself or received by him while insane, the extent of its liability should be measured by the amount of premium paid. The issue was whether the deceased was killed through external, violent, and accidental means, or by injuries wantonly inflicted upon himself. This issue was tried to a jury, and the errors assigned relate to the charge of the court.

It is assigned as error that the court refused to direct the jury at the close of the evidence that the defendant could not recover more than $42.30, the premium paid, and the interest thereon from August 30, 1895, because the evidence was insufficient to support a finding that the insured was accidentally shot, and because the weight of evidence showed that he committed suicide. There was evidence tending to show that Egbert, a man 59 years old and in good health, rose from his bed about 3 o'clock in the morning took his pistol, told his wife that he was 'going down to settle those dogs,' and left his house wearing an undershirt, nightshirt, and hat; that shortly afterwards his wife heard a shot, looked out of the window, and saw her husband walk along the south side of the house towards the east, and then turn and go rapidly towards the west, out of her sight; that she heard two shots shortly afterwards; that there was a heavy gate in the fence at the west end of the lot, which opened into an alley; that a neighbor who lived in a house west of the alley heard a pistol shot, arose, and saw through her window a white object in the alley and sparks of fire on the ground, and then saw a flash which did not seem to be near the object in white, heard an explosion, and then heard the gate slam; that blood and Egbert's pistol were found in the alley; that he was found dead in his lot, a short distance from the gate, with his nightshirt torn, and two pistol or gunshot wounds in his body, and that his shirt was burned with powder around the holes...