Occidental Life Ins. Co. v. Holcomb

• Decision Date: 30 December 1925
• Docket Number: No. 4616.,4616.
• Citation: 10 F.2d 125
• Parties: OCCIDENTAL LIFE INS. CO. v. HOLCOMB.
• Court: U.S. Court of Appeals — Fifth Circuit

10 F.2d 125 (1925)

OCCIDENTAL LIFE INS. CO. v. HOLCOMB.

No. 4616.

Circuit Court of Appeals, Fifth Circuit.

December 30, 1925.

W. M. Bates, F. H. Lowrance, and C. H. Read, all of Dallas, Tex., for plaintiff in error.

W. P. McLean, Jr., of Fort Worth, Tex. (McLean, Scott & Sayers, of Fort Worth, Tex., on the brief), for defendant in error.

Before WALKER, BRYAN, and FOSTER, Circuit Judges.

FOSTER, Circuit Judge.

This is a suit on a policy of life insurance. It was filed originally in the Forty-Ninth judicial district court of Tarrant county, Tex., and removed to the District Court. The policy provided for indemnity of $2,500 for death from ordinary causes, and a rider was attached giving double benefit in case of death by accident. Prior to the bringing of suit, defendant had tendered the face of the policy, less $18.80, a balance due on account of premiums, and after removal that amount ($2,481.20) was deposited in the registry of the District Court. At the trial the jury was waived by stipulation, and the case submitted on an agreed statement of facts. Judgment was entered for the double benefit, less the balance due, with interest, for a penalty of 12 per cent. on the amount not tendered, and for $500 attorney's fees, under the Texas law, a total of $5,781.20.

The material part of the provision of the policy for double indemnity is as follows:

"That if the insured, while this policy is maintained in force by the payment of cash premiums, shall sustain personal bodily injury (excluding those received while engaged in military or naval service, whether as a volunteer or otherwise, or aeronautics, or suicide, or self-destruction, or any attempt thereat while sane or insane) which is effected by the happening of a purely accidental event, and which solely and independently of all other causes results in the death of the insured within 90 days thereafter, the company will pay the beneficiary, or beneficiaries, upon surrender of this policy and this supplemental agreement, double the face of the policy, making the total amount payable $5,000."

The salient facts shown by the stipulation are these:

Holcomb, the insured, resided in Fort Worth, Tex., with his wife. He became suspicious of her relations with one Green, employed as a delivery man by a laundry. On a certain day Holcomb met Green at his residence, while he was delivering laundry. Holcomb cursed and abused Green, and told him if he caught him there any more he would kill him. On April 7, 1924, a few days later, Mrs. Hooks, a sister of Mrs. Holcomb, had a conversation with Green by telephone, and asked him to meet her at Lowe's Pharmacy in the city of Fort Worth at 3 o'clock the same afternoon. Holcomb was present when she had the telephone conversation, and knew that she was to meet Green at the place appointed. That morning Holcomb had become enraged with his wife, choked her, and compelled her to sign a statement to the effect that she had had improper relations with Green.

Holcomb went to the pharmacy at about 2:30 p. m. and went behind a partition in the rear. Mrs. Hooks arrived about 2:45 at the pharmacy. Green came shortly after, but they were not acquainted; so did not meet. Green passed through the store and went back to where Holcomb was waiting. Holcomb immediately charged him with improper conduct with Mrs. Holcomb, prepared a written confession of guilt and an agreement to leave the city, and demanded of Green that he sign it. Green denied any improper relations with Mrs. Holcomb and refused...