Franchebois v. New York Life Ins. Co.

• Decision Date: 03 November 1930
• Docket Number: 29465
• Court: Louisiana Supreme Court
• Parties: FRANCHEBOIS v. NEW YORK LIFE INS. CO. (two cases)

131 So. 46

171 La. 358

FRANCHEBOIS v. NEW YORK LIFE INS. CO. (two cases)

No. 29465

Supreme Court of Louisiana

November 3, 1930

Appeal from Thirteenth Judicial District Court, Parish of St Landry; B. H. Pavy, Judge.

Suits by Bernadette Franchebois, a widow, and by Bernadette Franchebois, natural tutrix, against the New York Life Insurance Company, consolidated. Judgment for plaintiff in each case, and defendant appeals, and plaintiffs answered appeal.

Judgments set aside, and judgment rendered rejecting plaintiffs' demands in part and allowing same in part.

Louis H. Cooke, of New York City, Albin Provosty, of New Roads, L A. Fontenot, of Opelousas, and Montgomery & Montgomery, of New Orleans for appellant.

Dubuisson & Burleigh and L. L. Perrault, all of Opelousas, for appellee.

OPINION

OVERTON, J.

These consolidated cases are suits on the double indemnity clause, contained in each of two life insurance policies, written by defendant on the life of Joseph P. Cormier, payable, one to his wife,and the other to his minor children, all of whom are plaintiffs herein. Each policy is for $ 5,000, and therefore the double indemnity feature in each is for $ 5,000. There is also a demand for $ 175 interest in each of the two cases, which rests upon the allegation that in an amicable settlement of the $ 5,000, representing the face of the policy, and payable without reference to death by accidental means, there was a failure to pay the interest between the date of the proof of death and the date of the settlement.

The double indemnity clause reads as follows:

"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, and that such death occurred within ninety days after sustaining such injury, subject to all the terms and conditions contained in Section 2 hereof."

The conditions contained in section 2 are as follows:

"The provisions for double indemnity benefit on the first page hereof will not apply if the insured's death resulted from self-destruction, whether sane or insane; from any violation of the law by the insured; from military or naval service in time of war; from engaging in riot or insurrection; from war or any act incident thereto; from engaging as a passenger or otherwise, in submarine or aeronautic operations; or directly or indirectly from physical or mental infirmity, illness or disease of any kind."

The defenses are: First, that the death of the insured does not come within the double indemnity clause of the policy, in that it was not brought about by accidental cause; and, secondly, because his death resulted from a violation of law, in that the insured carried a concealed weapon, namely, a pistol, and was the aggressor, firing to kill a person -- all violations of the law.

The death of the insured occurred in the neighborhood of 11 o'clock in the morning, while an election was in progress at the Plaquemine Point precinct in the parish of St. Landry. On that occasion a rencounter occurred in which the insured, John Childs, and Thomas Childs were killed and Getty Childs, Joseph Castille, and two others who took no part in the affair, were wounded, Getty Childs seriously.

Approximately one year prior to the death of the insured, while the latter's employees were working the public road opposite his place, Thomas Childs, the son of John Childs, threatened to kill him, if the employee continued to work the road, adding that the insured was no more than the employee, when informed that the latter was working the road at the insured's instance. The conduct of Childs was communicated to the insured.

On another occasion, some five or six months before the death of the insured, Thomas Thibodeaux saw the handle of a pistol, borne by Thomas Childs, and asked Childs why he was carrying it, and Childs replied that the insured hit him when he was a child, and that he wanted revenge some day.

Seventeen days before the death of the insured, while he was in conversation with Eli Beaugh in a store at Lawtell, Thomas Childs walked up to him and kicked him, and when the insured asked what he meant, Childs replied: "You remember when you hit me when I was a kid, now I am a man like you." A fight immediately followed in which both the insured and Childs used knives. Immediately after the fight began, John Childs, the father of Thomas Childs, joined his son in the fight. The result of the fight was that the insured received five knife wounds, at least one of which was inflicted by John Childs. After the fight had ended, and while the insured was about to be taken to the hospital, Thomas Childs exclaimed, in the presence of the accused, that he had been waiting a long time for this, and that he was a man then and if anybody wanted to take the insured's side he was ready.

One witness testified that, at the house of Thomas Childs, shortly before the latter left for the polling precinct with Getty and John Childs, Thomas Childs exhibited to him the gaps in his knife, which he said were made in cutting Cormier, and that a few minutes later, Thomas Childs remarked to his father, jokingly, that he wanted to make friends with the insured, at which his father grew angry and replied: "Tom, no; you don't have to make friends with him; the thing you ought to do is to put a ball through him, because as soon as he sees us arrive, he will (substantially) be scared to death." The evidence of this witness, for reasons which will hereafter appear, does not appeal strongly to this court.

A few minutes after the foregoing remarks were said to have been made, the three Childses left in an automobile for the polling place, which was a short distance away. As appears from later disclosures, it appears that, at the time of leaving, Thomas and Getty Childs were armed with pistols, each carrying his pistol, strapped to his waist, and concealed under his shirt, both being in their shirt sleeves; but so far as relates to John Childs, there is no evidence whatever that he was armed then or at the time of the trouble that ensued.

John Childs was appointed one of the commissioners of election, but he failed to appear. It is said by his son, Getty Childs, that his father declined the appointment, because he wished no trouble at the polls. The insured was not originally appointed a commissioner of election, but was appointed by the commissioners present to take the place of some one absent, probably the place of John Childs, and served as such. He went to the polls early in the morning.

The election was held in a garage, which consisted of three rooms, and was located near the public road. One of these rooms was used as a booth in which to mark tickets. The commissioners sat in the room next to it. To this room were two large double doors, affording an entrance from the outside. To prevent people from crowding the voting place the commissioners stretched a rope so as to block off a square in front of the garage, extending some twenty or twenty-five feet from the building. An opening was left at the extreme right, next to the building, so arranged that the opening of the right-hand door of the garage would...