New York Life Ins. Co. v. Bradshaw

• Decision Date: 22 November 1924
• Docket Number: No. 4212.,4212.
• Citation: 2 F.2d 457
• Parties: NEW YORK LIFE INS. CO. v. BRADSHAW.
• Court: U.S. Court of Appeals — Fifth Circuit

2 F.2d 457 (1924)

NEW YORK LIFE INS. CO. v. BRADSHAW.

No. 4212.

Circuit Court of Appeals, Fifth Circuit.

November 22, 1924.

Shepard Bryan and Grover Middlebrooks, both of Atlanta, Ga., and Barry Wright, of Rome, Ga. (Louis H. Cooke, of New York City, Bryan & Middlebrooks, of Atlanta, Ga., and Willingham, Wright & Covington, of Rome, Ga., on the brief), for plaintiff in error.

G. E. Maddox and Geo. A. H. Harris, Jr., both of Rome, Ga., for defendant in error.

Before WALKER, BRYAN, and KING, Circuit Judges.

WALKER, Circuit Judge.

The defendant in error recovered judgment on a life insurance policy issued to her husband in November, 1921. The insured died in February, 1922. The policy was for the sum of $10,000, and contained a provision for double indemnity in case of death resulting directly and independently of all other causes from bodily injury effected solely through external, violent, and accidental cause. The policy contained the following provision: "In the event of self-destruction during the first two insurance years, whether the insured be sane or insane, the insurance under this policy shall be a sum equal to the premiums thereon which have been paid to and received by the company, and no more."

The answer to the petition averred that the insured committed suicide, and tendered the amount of the one premium which had been paid in full settlement of all liability under the policy. At the conclusion of the evidence the court refused to give a requested charge to the effect that there could be no recovery except of the amount tendered by the defendant. The court instructed the jury that the plaintiff was not entitled to recover under the double indemnity provision, on the ground that she had not sustained the burden of proving that the death of the insured was accidental within the meaning of that provision.

There was uncontroverted evidence to the following effect: The night prior to his death the insured occupied a room with his wife and three children; the oldest child being about eight years of age. The wife, the plaintiff in the suit, arose at about 6 o'clock in the morning; the insured remaining in bed while plaintiff dressed. As soon as she was dressed, plaintiff went into an adjoining room to build a fire; her husband and the three children remaining in the room she left, the oldest child then being awake and out of bed. While plaintiff was attempting to build a fire in the adjoining room, and very soon after she entered that room, she heard a shot, and immediately returned to the room in which were the insured and the children. She found the insured lying on the bed with a pistol wound in his head and a pistol lying near his body, one of the two cartridges in the pistol then being empty. That pistol belonged to the insured. He had had it for many years, and was accustomed to sleeping with it under his pillow or by the side of the bed. It was a double-barreled Derringer, one barrel on top of the other, about four or five inches long. The shooting of it required that it be cocked and that pressure be exerted on the trigger. The open wound was in the insured's left temple, over the left ear, and the bullet went straight through his head, and could be felt under the skin on the right side in a position similar to that of the place...