New York Life Ins. Co. v. Alman

• Decision Date: 05 December 1927
• Docket Number: No. 5087.,5087.
• Citation: 22 F.2d 98
• Parties: NEW YORK LIFE INS. CO. v. ALMAN.
• Court: U.S. Court of Appeals — Fifth Circuit

22 F.2d 98 (1927)

NEW YORK LIFE INS. CO. v. ALMAN.

No. 5087.

Circuit Court of Appeals, Fifth Circuit.

November 4, 1927.

Rehearing Denied December 5, 1927.

William McLeod and T. M. Stevens, both of Mobile, Ala. (Stevens, McCorvey, McLeod, Goode & Turner, of Mobile, Ala., on the brief), for plaintiff in error.

S. M. Johnston, of Mobile, Ala. (Gray & Dansby, of Butler, Ala., and Smiths, Young & Johnston, of Mobile, Ala., on the brief), for defendant in error.

Before WALKER, BRYAN, and FOSTER, Circuit Judges.

BRYAN, Circuit Judge.

On September 16, 1924, the New York Life Insurance Company issued a policy of insurance on the life of Dr. Samuel Alman. The policy was made payable to his executor or administrator, in the sum of $5,000 upon proof of death, and in the sum of $10,000 upon proof that death resulted "from bodily injury effected solely through external, violent, and accidental cause," within a named period. In the event of self-destruction within two years, the insurance company is liable only for the amount of premiums that had been paid. It is also provided that the double indemnity provision would not apply if the death of the insured resulted from self-destruction. The insured died on August 18 or 19, 1925, and in March of 1926 his widow, as executrix of his estate, brought this suit, and recovered judgment under the double indemnity provision for $10,000. The defense was that the insured committed suicide, and the amount of the first premium, which was all that had been paid, was tendered as the measure of liability.

The only assignment of error we find it necessary to consider complains of the trial court's refusal at the close of all the evidence to direct a verdict for the defendant. Dr. Alman, the insured, was found dead in his bedroom, early in the morning of Wednesday, August 19. He was lying on his back diagonally across the bed, with a gunshot wound about an inch below his left nipple. His left foot was on the floor, and his right foot was just about touching the floor. He was in his nightshirt, and his double-barrel shotgun, with the butt on the floor near the right foot, was leaning against the left knee. The wound was covered with blood, as was a hole in the nightshirt immediately over it. There were also signs of rust on the nightshirt, indicating that the gun had slid down between the legs. An exploded shell was in the left or choke barrel of the gun. Dr. Alman's 16 year old son discovered the body, and before it was moved a number of neighbors and friends gathered and viewed it. A physician attended and probed the wound with a pair of scissors. He testified that the wound ranged upward and slightly toward the right side of the body, and was about the size of a quarter. A more thorough examination was not undertaken, and it was not shown what kind of powder or what size of shot the exploded shell contained. None of the witnesses observed any powder marks on the nightshirt, or around the wound. The nightshirt was introduced in evidence, and has been sent here as an original exhibit. However, it is of very light material, and had been washed before the trial. The hole in it is now somewhat larger than the muzzle of the gun barrel, but it is torn and frayed, and is very little, if any, larger when the frayed parts are placed back in their original position. Immediately around the hole, there yet appears to be a discoloration, such as might have been caused by powder marks. There was some testimony to the effect that the size of the wound was even larger than it was stated to be by the physician who probed it.

Two physicians testified for plaintiff, basing their testimony on their study, observation, and experience — one, that a wound inflicted by a gun held within 10 inches, but not against the body, would tend to assume the caliber of the gun; and the other, that a wound made by a gun pressed against a man's body would be the same size as the muzzle of the gun, unless the wound was enlarged by being torn. Other expert testimony was to the same effect. The results of experiments, made with small shot fired from the left barrel of Dr. Alman's gun while it was held against, and 4 inches away from, heavy cardboard, and with buckshot fired 12 feet away into a wooden box, were received in evidence for the purpose of showing the spread of the shot and the presence or absence of powder marks. The cardboard and box were admitted in evidence over defendant's objection. Two physicians testified for defendant that a shotgun held against or within a few inches of the human body would tear and break down the tissue, and thus cause the wound to be larger than the muzzle of the gun. Dr. Alman was about 6 feet in height, and weighed less than 200 pounds. The gun barrel was 28 inches in length. He kept the gun in his bedroom, where he also had a shorter barrel for it. He also kept loaded shells in a bureau drawer, and, when his body was found, that drawer was pulled out. At that time a hunting knife was on the dresser and a medicine case on a table; and an oil lamp, which it was his custom to keep lighted at night, was still burning in his room. There was no circumstance to indicate that he had been engaged in a struggle.

Dr. Alman was 53 years of age, and the only physician in Gilbertown, where he lived. He was treasurer of the church of which he was a member, and prominent in business affairs and in politics. He was highly regarded in the community, and was referred to at the trial by several witnesses as its leading citizen. He was a particular friend of A. B. Pruitt, whom he had assisted in establishing and maintaining a drug store and in being appointed state law enforcement officer,...