New York Life Ins. Co. v. Weaver

• Decision Date: 13 October 1925
• Docket Number: No. 4529.,4529.
• Citation: 8 F.2d 680
• Parties: NEW YORK LIFE INS. CO. v. WEAVER.
• Court: U.S. Court of Appeals — Fifth Circuit

8 F.2d 680 (1925)

NEW YORK LIFE INS. CO. v. WEAVER.

No. 4529.

Circuit Court of Appeals, Fifth Circuit.

October 13, 1925.

Shepard Bryan and Grover Middlebrooks, both of Atlanta, Ga. (Louis H. Cooke, of New York City, Bryan & Middlebrooks, of Atlanta, Ga., and Horace & Frank Holen, of Athens, Ga., on the brief), for plaintiff in error.

Howell C. Erwin, Wm. L. Erwin, and Abit Nix, all of Athens, Ga., and R. L. Cox, of Monroe, Ga., for defendant in error.

Before WALKER, BRYAN, and FOSTER, Circuit Judges.

WALKER, Circuit Judge.

This was an action by the defendant in error, suing as executor, on a life insurance policy issued to his testator, who died in May, 1922. The policy sued on was issued in May, 1921, for the sum of $7,000, and contained a provision for payment of double the face of the policy in case of the death of the insured resulting directly and independently 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 petition contained two counts; the first claiming $7,000, and the second claiming double that amount. The court ruled that plaintiff was not entitled to recover on the second count, on the ground that he failed to carry the burden of showing that the death of the insured resulted from external, violent, and accidental cause within the meaning of the policy. The claim asserted was resisted on the ground that during the first two insurance years the insured destroyed himself by drinking carbolic acid. The answer to the petition alleged that the total premium paid to and received by the defendant on the policy amounted to $211.68, and that that amount was tendered plaintiff and refused by him before the filing of the petition, and that tender was renewed by the answer. It was admitted that such tender was made and declined. The court refused to give an instruction requested by the defendant to the effect that the plaintiff was entitled to no recovery, except said amount tendered by the defendant.

There was uncontroverted evidence to the following effect: Immediately prior to his death the insured was living on a farm. Having disappeared from his home, a search for him was begun during the night of May 10, 1922. That night tracks, recognized as the insured's, were discovered which indicated that he had recently entered a swamp, where his movements could not be traced. Early the next morning his dead body was found on a farm road about three-fourths of a mile from his house and about half a mile from the swamp, where track of him was lost the night before. When found, the body was lying face downward, with insured's cap on the head and his glasses on the nose, and there were no signs of any struggle and no evidence of any external violence having been committed. When the body was found, there was the odor about it and from his mouth of carbolic acid, a deadly poison, if enough of it is taken internally. The tongue and inside...