New York Life Ins. Co. v. Trimble

• Decision Date: 02 May 1934
• Docket Number: No. 7132.,7132.
• Citation: 69 F.2d 849
• Parties: NEW YORK LIFE INS. CO. v. TRIMBLE.
• Court: U.S. Court of Appeals — Fifth Circuit

69 F.2d 849 (1934)

NEW YORK LIFE INS. CO. v. TRIMBLE.

No. 7132.

Circuit Court of Appeals, Fifth Circuit.

April 6, 1934.

As Corrected April 13, 1934.

Rehearing Denied May 2, 1934.

F. G. Thatcher, Elmo P. Lee, and Tinsley Gilmer, all of Shreveport, La., for appellant.

Otis W. Bullock and Howard B. Warren, both of Shreveport, La., for appellee.

Before BRYAN, FOSTER, and HUTCHESON, Circuit Judges.

BRYAN, Circuit Judge.

The New York Life Insurance Company in 1926 issued a policy of insurance upon the life of Guy H. Trimble by which it agreed to pay $10,000 upon proof of death of the insured, and an additional $10,000, called "double indemnity", upon proof that death resulted from bodily injury effected solely through "external, violent and accidental cause." The insured died on Monday, October 13, 1930, of a pistol wound. His mother, the beneficiary named in the policy, acknowledging payment of $10,000, the face of the policy, but alleging that the death of the insured was caused by the accidental discharge of a pistol, brought this action to collect the double indemnity. The insurance company denied this allegation and pleaded affirmatively that the insured committed suicide. The trial resulted in a verdict and judgment for the plaintiff. The defendant appeals and assigns as error the refusal of the trial court at the close of the evidence to direct a verdict in its favor.

At the time of his death the insured was employed as junior engineer by the Arkansas Natural Gas Corporation. About the 1st of September, 1930, he was sent to Tullos, La., a village or small town about 100 miles from Shreveport where his mother lived. While at Tullos he slept in an upstairs room of his employer's warehouse. About 7 o'clock on the morning of October 14, 1930, his body was discovered in his bedroom by one of his employer's lease foremen. The body, fully clad in working clothes, was lying face up crosswise the bed, the feet resting on the floor toward the north. There was a west window at the head of the bed, the upright facing of which was about in line with the north side of the bed. The insured had been shot through the head with a .32 caliber bullet. The wound was straight through the temples from right to left, a little above and in front of the ears. There were powder burns in and immediately around the wound where the bullet entered, indicating that the weapon was held against the right temple. There was also an indentation in the upright facing of the window in line with the flight a bullet would naturally take if fired horizontally through the head of one sitting on the north side of the bed. The bullet which caused the insured's death was picked up off the floor near the window, and the empty shell out of which it came was found on the floor near the foot of the bed. The insured was right-handed, and in the right hand was a German-Leuger automatic pistol. The forefinger was not resting on the trigger, but all four fingers of the right hand were clasped around the handle. The clip or magazine of the pistol lay on the bed about 18 inches away from the right side of and between the body and the foot of the bed. It was made to hold eight loaded cartridges, and contained seven, identical in size and kind with the death missile. The pistol was usually loaded from the magazine by raising and then lowering the mechanism on the top of it. After the first cartridge had been thrown into the barrel, it could be fired continuously by pressure upon the trigger after each shot until all the cartridges in the magazine were exhausted. It could be loaded, however, by hand if the magazine were removed. One loading it either way could easily see whether the barrel was empty or not. The clip could be removed by pressing against a spring on the left of the handle near the trigger and pulling it out from the bottom. Perhaps the magazine when loaded would drop out merely upon pressing the spring. But that spring was so located that one firing the pistol in the usual way could not touch it with his forefinger. One could not take a firm grip on the handle and at the same time extend his forefinger through the trigger guard far enough to release the spring; only by somewhat releasing the grip on the handle could the forefinger reach through the trigger guard past the trigger far enough to touch the spring and release the clip. The pistol also had a safety device in plain view, which, if properly set, kept the pistol from going off although the trigger was pulled. On October 13 the insured remained at the office in the warehouse after his co-workers had left for the day. He was last seen by them about 6 o'clock p. m., and so far as is known did not go to supper. He mailed in to the company that day his semimonthly statement of his salary which was not due to be sent in until the 15th. Long, with whom the insured sometimes went to supper, returned to his room across the hall about 8:30 and went to bed. He heard no pistol shot or unusual noise that night. A physician, who made a post mortem examination some time during the morning of the 14th, testified that in his opinion the insured had then been dead fourteen or fifteen hours. There was no evidence or circumstance to indicate that the insured had been engaged in a struggle or that any of his personal effects had been interfered with or taken. Indeed, it was not the theory of the plaintiff that there had been an intentional killing; for, as already stated, she alleged that death was caused by the accidental discharge of the...