Mutual Life Ins. Co. of New York v. Zimmerman

• Decision Date: 25 March 1935
• Docket Number: No. 7586,7587.,7586
• Citation: 75 F.2d 758
• Parties: MUTUAL LIFE INS. CO. OF NEW YORK v. ZIMMERMAN et al. NEW YORK LIFE INS. CO. v. ZIMMERMAN.
• Court: U.S. Court of Appeals — Fifth Circuit

75 F.2d 758 (1935)

MUTUAL LIFE INS. CO. OF NEW YORK v. ZIMMERMAN et al.

NEW YORK LIFE INS. CO. v. ZIMMERMAN.

Nos. 7586, 7587.

Circuit Court of Appeals, Fifth Circuit.

February 27, 1935.

Rehearing Denied March 25, 1935.

J. L. Doggett, O. O. McCollum, and Charles Cook Howell, all of Jacksonville, Fla., and Frederick L. Allen and Louis H. Cooke, both of New York City, for appellants.

John G. Graham and M. Caraballo, both of Tampa, Fla., for appellees.

Before BRYAN, SIBLEY, and HUTCHESON, Circuit Judges.

SIBLEY, Circuit Judge.

The appellee, Nellie F. Zimmerman, in September, 1929, brought two separate suits on policies of insurance on the life of her husband, Albert H. Zimmerman, alleging in one count that the insured died August 24, 1927, and that she was entitled to recover the face of the policy, and in a second count that the death resulted from external, violent, and accidental means, to wit, drowning, whereby a double indemnity was due. The suits were tried together, and on June 2, 1934, verdicts were rendered in favor of the defendants on the second count but in favor of the plaintiff on the first count. These appeals followed. We find it necessary to notice but two questions: (1) Whether evidence of the finding of a human femur across Indian river from the supposed place of drowning should have been excluded; and (2) whether a verdict should have been directed for the defendants.

Circumstantial evidence was relied on to show both that Zimmerman was dead and the time and manner of death; the theory being that he was accidentally drowned while wading in Indian river on Wednesday, August 24, 1927. He has not been seen or heard from since, unless two witnesses for the defendants say truly that he was seen by them, respectively, in North Carolina and in Honduras. These witnesses were so far impeached as to make their credibility a matter for the jury, and their testimony is not to be considered for present purposes. The evidence is that Zimmerman was married to appellee in 1910, when twenty-three years old. He bargained for a farm in Missouri for $15,000, but did not pay for it, and entered a hardware business. A daughter, Myrtle, was born. Zimmerman left home and was gone several months. His father advertised for him and offered a small reward, and thus located him in Colorado and brought him home, but appellee says she was in communication with him. In 1912 he went to Florida, where his wife and daughter later joined him. He worked as bookkeeper for one corporation for seven years, and as manager of another for three years, and then became manager of a business of Fugazzi Bros. in Tampa. The wife and daughter and several neighbors testify to his character as a dutiful and affectionate husband and father. Several men say, without contradiction, that he went to and gave mixed parties without his wife, saying that she was not good company and nagged him, and two testify that he had said he was going to buy her a one way ticket back to Missouri. It was testified that he frequently had relations with other women. In 1927, Zimmerman with one Potter had a construction contract in North Carolina to carry out which they had bought twenty trucks and owed for them over $53,000 on title retention contracts; some of the notes being past due and pressing in August. He had bought tires and other supplies from a Jacksonville firm to which he then owed $2,300, and they were pressing him. He had borrowed first $1,000 and then $3,000 from a Mrs. Starke, giving for the latter loan a note signed Fugazzi Bros., per A. H. Zimmerman, manager, though the proceeds of the note did not go to Fugazzi Bros. and the note did not appear on their books. She was pressing for payment. Fugazzi Bros.' books showed that Zimmerman personally owed them $2,262, Potter and Zimmerman $36,561, while a third concern operated by Zimmerman owed $15,561, which sums were afterwards nearly all charged off as losses. There were some bank balances, but all were offset by notes due to the banks. Zimmerman had bought some real estate, an automobile and furniture, but they were unpaid for and after his disappearance not a cent was realized by his family from any source. In July Mr. Charles Fugazzi, who resided elsewhere, had come to Tampa, and Zimmerman was told that Fugazzi was looking into Zimmerman's affairs. Zimmerman was heard to say: "I know I am through." He had insurance on his life, including accident indemnities, aggregating $96,000, but none old enough to have much, if any, surrender value. A premium of $870 on his largest policy went into default August 18, 1927, and a premium of $311 on another was to fall due on August 25, 1927. During August Zimmerman was prospecting with one Johns (Fugazzi also having an interest in the results, if any), seeking a kind of sand in the bed of Indian river. He and Johns waded down it from Melbourne for eighteen miles taking samples, until on Saturday, August 20, they had reached a point opposite San Sebastian Inlet. This is one of several inlets which connect Indian river, a long sheet of still water, with the Atlantic Ocean. Having finished their prospecting he and Johns went to Jacksonville with their samples on Sunday, August 21st, in Zimmerman's automobile. That night Zimmerman proposed to Johns to go "tomcatting," but Johns was tired, and they did not go. Monday, having delivered the samples, Zimmerman bought an auto tire and got cashed a check for $100 or $150, sending a telegram to Fugazzi Bros. to make deposit of $150 to cover checks drawn. He got Johns to guide him to a rooming house at an address where Zimmerman found a woman called Annie, with whom he seemed well acquainted and who owned an automobile, and they arranged to go together that afternoon to Jacksonville Beach. Johns came by train to Tampa. Zimmerman was next seen with his car at Melbourne Wednesday at about midday. He took a room at the hotel and left a bag in it which afterwards was found to contain only some soiled linen. No suit or toilet articles were there. He left the hotel, giving the clerk two telegrams for transmission. One was to Mrs. Zimmerman reading: "Too tired to drive home tonight and not feeling any too well. Got what we came after and will be home sometime tomorrow. Hope Myrtle is home. Love." The other was to Johns: "Got Victor's and everything is O. K. Will be in Tampa tomorrow on way home. Unable to connect with Melbourne man today. Hear he has done well and will see him in morning." He got in his car, had an interview on the street with a man from whom he wanted a sand lease, and promised to see him in the evening or the next morning. He went south toward San Sebastian Inlet, bought gasoline on the way, using a $10 bill taken from among other bills. About opposite the Inlet stands San Sebastian Inn, not then open, but in charge of a caretaker. There Johns and he during the previous week had been leaving their street clothing and donning their wading costumes in the morning and in the early afternoon taking a bath and dressing, leaving tools and wading clothes with the caretaker. Zimmerman went there, got his wading suit which was dry but did not put it on or leave his other clothing or get any tools, so far as the caretaker knew. He said he would change elsewhere. Usually Zimmerman was very jovial, but this time appeared to be thinking seriously about some not very pleasant subject, and said but little. He looked at the caretaker hard for two or three minutes, then held out his hand and said: "Well, goodbye, Fred." He had never done so before. No witness saw Zimmerman afterwards. About a mile northwards up the road the car turned eastward down a trail leading a short distance through the palmettos to the river, and was found a few feet from the water's edge either the same afternoon or the next afternoon about sunset. The door was open. Shoes and socks, underwear, trousers, and shirt were in it; there being some conflict whether there was a coat and hat there. There was a brief case containing some papers, a brand new hoe, and some samples of sand in the tonneau. No tracks led over the narrow beach to the water, but plain footprints made by a man running led from the car door up the trail to the highway. At the highway there was another automobile track which had come from the north, had turned across the highway just south of the trail, then gone across the automobile tracks in the entrance of the trail and thence back...