New York Life Ins. Co. v. Bacalis, 8465.

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Citation: 94 F.2d 200
• Docket Number: No. 8465.,8465.
• Parties: NEW YORK LIFE INS. CO. v. BACALIS.
• Decision Date: 27 January 1938

94 F.2d 200 (1938)

NEW YORK LIFE INS. CO.
v.
BACALIS.

No. 8465.

Circuit Court of Appeals, Fifth Circuit.

January 27, 1938.

R. W. Shackleford, of Tampa, Fla., for appellant.

C. Edmund Worth and W. J. Bivens, both of Tampa, Fla., for appellee.

Before FOSTER, SIBLEY, and HOLMES, Circuit Judges.

SIBLEY, Circuit Judge.

James Bacalis, as beneficiary of an insurance policy on the life of his brother Jerry, got a verdict by direction of the court, and the Insurance Company appealing

94 F.2d 201

contends that the evidence required submission to the jury of the issues made by special pleas in substance that the insured, who was murdered September 3, 1934, was on August 10, 1934, when he applied for the insurance, and on August 24th, when the policy was delivered, in personal difficulty with one Peter Frank, and believed he was in danger of being murdered by Frank, and was carrying a pistol to protect himself, which were circumstances material to the risk unknown to the company and which Bacalis was bound to disclose

The evidence showed that Jerry Bacalis had previously carried several policies of insurance with the company which had lapsed for nonpayment of premiums. In 1934, he appears to have had a home, and a good business in which Frank and Frank's brother-in-law Charlie Peters were partners. In May, 1934, Bacalis intercepted a letter from his wife to Frank which led to a discovery of adultery between them. On July 17th, Bacalis filed a suit for divorce against his wife on that ground, and a suit against Frank for $50,000 for alienation of his wife's affections. Friends arranged a settlement of the latter suit on July 19th by which Frank was to sell on agreed terms his interest in the business to Bacalis. The preliminary payments were made by Bacalis July 31st, and the suit was dismissed. A Greek society to which all parties belonged expelled Frank, but Bacalis is not shown to have had anything to do with that. Frank was not entirely satisfied with the settlement, but the witnesses would not say that he continued "mad." No proof was made that either Frank or Bacalis had attempted to attack the other, or threatened to do so. Frank had, in speaking of Bacalis, called him a vile name and made an incomplete threat of some sort in case Bacalis should attempt to oust Charlie Peters from the business, but Peters testified that Bacalis had never attempted to do that and he did not expect it; and this was all after the policy had been delivered. There was evidence that the night of the day after the policy was delivered Bacalis asked his young nephew, who slept in an adjoining room, to sleep with him. The following day Bacalis went on a trip and brought back one Lemons, who slept with him five nights afterwards and was sleeping with him on the morning of September 3rd when Bacalis was found in bed shot through the head. Neither Lemons nor Frank testified. Bacalis had a large pistol which he carried on his trips, but was not carrying it more than usual just before his death. He also had gotten a small pistol during the last days belonging apparently to one Doukos. Doukos was produced as a witness by the Insurance Company, but was withdrawn, and the time and circumstances of Bacalis getting that pistol do not well appear. The nephew of Bacalis and two other witnesses mainly relied on by the Insurance Company to prove the pleas did not testify...