Missouri State Life Ins. Co. v. Roper, 5922.

• Decision Date: 28 November 1930
• Docket Number: No. 5922.,5922.
• Citation: 44 F.2d 897
• Parties: MISSOURI STATE LIFE INS. CO. v. ROPER.
• Court: U.S. Court of Appeals — Fifth Circuit

44 F.2d 897 (1930)

MISSOURI STATE LIFE INS. CO. v. ROPER.

No. 5922.

Circuit Court of Appeals, Fifth Circuit.

November 28, 1930.

Jelks H. Cabaniss and Gerry Cabaniss, both of Birmingham, Ala. (Cabaniss, Johnston, Cocke & Cabaniss, of Birmingham, Ala., on the brief), for appellant.

Borden Burr, of Birmingham, Ala. (Benners, Burr, McKamy & Forman, of Birmingham, Ala., on the brief), for appellee.

Before BRYAN and WALKER, Circuit Judges, and HOLMES, District Judge.

BRYAN, Circuit Judge.

This is an action at law on three life insurance policies aggregating $10,000, each of which contained a clause providing for double indemnity in the event the death of the insured should result solely "from bodily injuries effected directly from external, violent and accidental means." There was a verdict and judgment in favor of appellee, who was the wife of the insured and the beneficiary named in the policies, not only for the principal amount represented by the face of the policies, but also for $10,000 provided as double indemnity. Appellant concedes that judgment was properly entered against it for $10,000, the face of the policies, but takes this appeal on the ground that the court erred in refusing to charge the jury at its request that under the evidence no recovery could be had under the double indemnity provision.

It is undisputed that the sole cause of the death of the insured was a gunshot wound. The insured, Grady C. Roper, was a physician employed by the Southern Coal & Coke Company at its plant in Boothton, Ala. At the time of his death, Dr. Roper was living in a house next door to that occupied by Chelsea C. White, who kept the company's commissary. Earl Lee was living in a house also next to White, but on the opposite side from Dr. Roper. Lee testified for appellee that about 11 o'clock on the night of September 15, 1929, Dr. Roper called to him, "Come here quick; Mr. White has shot me;" that as soon as he could dress he went over to White's house, where he found Dr. Roper holding and striking White with his fist; that White had in his hand a short range pistol shotgun; that Dr. Roper seemed to be weak, and had been shot in the abdomen; that there were no signs of White having been struck, and Dr. Roper had no weapon in his hands or about his person, except a small penknife fastened to his watch chain; that he carried Dr. Roper to the hospital in his car; that "Dr. Roper gave no evidence of being drunk. I smelled no liquor on him and he was perfectly sober." With this evidence appellee rested her case. White was called as a witness for appellant, but, as he was then under indictment for the murder of Dr. Roper, refused to testify. By stipulation of counsel, it was agreed that White, had he become a witness, would have testified to the following effect: About 9 o'clock at night a man named Lacey came to my house. He had been drinking heavily, and in a few minutes became unconscious. I called Dr. Roper; he came over and at my request examined Lacey. Dr. Roper said that Lacey was simply dead drunk, and then asked for a drink of whisky, which I gave to him. Each of us had three drinks according to my recollection. Dr. Roper commenced quarreling with me, claiming I had overcharged him at the commissary. We had words back and forth, and he called me a robber. I then asked him to leave my house, but, instead of doing so, he cursed me and struck me in the face. The blow knocked me back against a table on which was a small four-ten gun. When I fell against the table, I picked up the gun and pointed it toward Dr. Roper and told him if he came any closer to me I would shoot. He continued to advance on me. With the gun pointed at him, I again warned him that, if he came any closer, I would shoot, but he refused to obey my warning, rushed at me, and when he did I pulled the trigger and shot him. Then Dr. Roper struck me again and knocked me down, using...