Killingsworth v. Aetna Life Ins. Co., 721.

• Decision Date: 25 April 1931
• Docket Number: No. 721.,721.
• Citation: 49 F.2d 399
• Parties: KILLINGSWORTH v. ÆTNA LIFE INS. CO.
• Court: New York District Court

49 F.2d 399 (1931)

KILLINGSWORTH v. ÆTNA LIFE INS. CO.

No. 721.

District Court, E. D. Texas, Jefferson Division.

April 25, 1931.

Beard & Abney, of Marshall, Tex., for plaintiff.

Harry P. Lawther, of Dallas, Tex., for defendant.

BRYANT, District Judge.

The above-entitled matter was tried before Honorable W. L. Estes, District Judge, deceased, and a motion for a new trial therein filed during his lifetime. At the time of the filing of the motion for a new trial, the following order was entered thereon by Judge Estes: "It is directed that the Clerk file the within motion and the same is taken under consideration. Jurisdiction of the case is retained for the purpose of disposing of same motion."

As the successor to Judge Estes, the author of this opinion is requested to act upon this motion for a new trial, pursuant to the provisions of section 776, title 28, USCA. As the evidence in such cause was taken in stenographic notes and perpetuated in record form, he is satisfied that he can and should pass upon such motion.

The plaintiff, during the pendency of the suit, married one George Hagemyer and the cause proceeded to judgment under her new name.

The principal question raised in the motion for a new trial involves essentially the interpretation and the effect of the testimony relating to the circumstances of the death of one Ike Killingsworth, the husband of the plaintiff.

The suit was on the double indemnity clause of the insurance policy issued by defendant, upon the life of Ike Killingsworth, deceased.

The death of the insured from gunshot wounds was proven, and the prima facie right of the plaintiff to recover was thus established. The defendant introduced the man who inflicted the wounds, and by him undertook to show that the death was occasioned by the wrongful conduct of the insured, rather than by accident, and other witnesses whose testimony tended to corroborate.

There was no other witness to the killing, but evidence relating to the physical circumstances attending the tragedy was introduced by both parties to the suit. For instance, the plaintiff had the sheriff of the county give the slayer's explanation respecting the wounds received by the deceased near the back or side of his head, which it was claimed was inconsistent with the testimony of the slayer on the trial. The plaintiff showed that the deceased was in a good humor when he went to the home of the slayer, where the killing occurred; and that the body, after being wounded, was removed from the immediate spot where the deceased was slain. There are perhaps other circumstances set forth in the record, calculated to disprove or to corroborate the accuracy of the testimony.

The case was submitted to the jury in a fashion that predicated the right of the plaintiff to recover upon a finding by them, from all the evidence, that the death of the insured was not precipitated or caused by his own wrongful conduct. The jury were told substantially that, if they should find that the death was not accidental, but that the deceased provoked or conducted himself so as to cause his death, they should find for the defendant. The verdict for the plaintiff, therefore, comprehends a finding that the death was accidental, in the sense that it was not invited or provoked.

The defendant is now urging a motion for a new trial, on the proposition that when the defendant's testimony was uncontradicted in essential respects, and showed the insured to have been in the wrong and to have caused or occasioned the controversy that resulted in his death, the presumption of accident attaching by reason of proof that the death resulted from gunshot wounds was overcome. The point is that, in such a state of affairs, the plaintiff, as a matter of law, is not entitled to recover.

The case of Smith v. Insurance Co. (C. C. A.) 31 F.(2d) 280, 281, a decision by Judge Bryan, has been cited as sustaining this contention. But I do not concur in this view. There a judgment had been rendered for the defendant upon findings of fact by the court that the conduct of the deceased brought about his own death. It was appealed upon the ground that the court should have adopted as correct the proposition that, "upon the whole evidence and admissions in defendant's answer, the burden is on the defendant to prove that the death was the result of causes enumerated in the exceptions contained in the double indemnity clause of the policies and specially pleaded in defense." In the course of the opinion it was stated that, "upon the submission by appellee of evidence tending to show that the insured was committing an assault in violation of law, the presumption was rebutted, and it was then incumbent on appellant to take the initiative again, and show by other evidence that death was accidental. * * * The proposition of law which appellant sought to have the trial court adopt would have relieved her of the burden of proof which she assumed as plaintiff in the suit."

It is manifest that the court in that case had under consideration a case where the prima facie case had been overcome. The testimony in behalf of the defendant had been credited by the trial court. A presumption arose, when the death was shown to have resulted from gunshot wounds, that the killing was accidental, "but that presumption only made out a prima facie case in the absence of evidence to the contrary." The evidence to the contrary, when believed, overcame the presumption. The evidence manifestly was credible evidence, because the judgment rendered was in favor of the defendant. To have given, in that state of the record, the instruction that was proposed, would, said Judge Bryan, have relieved the plaintiff of the burden she assumed...