Parrish v. Order of United Commercial Travelers of America

• Decision Date: 02 February 1916
• Docket Number: 1382.
• Citation: 232 F. 425
• Parties: PARRISH v. ORDER OF UNITED COMMERCIAL TRAVELERS OF AMERICA.
• Court: U.S. Court of Appeals — Fourth Circuit

232 F. 425

PARRISH v. ORDER OF UNITED COMMERCIAL TRAVELERS OF AMERICA.

No. 1382.

United States Court of Appeals, Fourth Circuit.

February 2, 1916

R. L Gordon, Jr., of Louisa, Va. (Gordon & Gordon, of Louisa, Va on the brief), for plaintiff in error.

John A Lamb, of Richmond, Va., and Harry L. Doud, of Columbus, Ohio (Lamb & Lamb, of Richmond, Va., on the brief) for defendant in error.

Before PRITCHARD, KNAPP, and WOODS, Circuit Judges.

WOODS Circuit Judge.

Bettie S. Parrish, a resident of Fluvanna county, Va., brought this action as beneficiary of a certificate or life insurance policy issued to her son Eugene M. Parrish, as one of its members by the Order of United Commercial Travelers of America, an Ohio corporation.

By plea in abatement the defendant made the point that since the plaintiff is a resident of the Western District of Virginia and the defendant a foreign corporation, jurisdiction of the action was in the District Court for the Western District and not the District Court for the Eastern District. This plea to the jurisdiction was overruled on the ground that the defendant had waived it by filing a general demurrer to the declaration. The demurrer was also overruled, and the defendant then set up these special pleas:

(1) That the plaintiff had failed to comply with the following provisions of the constitution of the order:

'In event of any accidental injury on account of which a death claim may be filed against the order, notice of the accident (not the results) must be given in writing to the Supreme Secretary within ten days thereafter, stating the full name and address of the injured member, date and full particulars of the accident and the name and address of his medical attendant.

'In event of a death resulting from external, violent and accidental means as hereinbefore provided, notice of the accident must be given as hereinbefore provided, and, in addition, notice of the death must be given in writing to the Supreme Secretary within ten days after the death.'

(2) That Eugene M. Parrish had caused his own death by intentionally shooting himself in the head with a pistol; and the constitution of the order provided that there should be no liability under the policy for death resulting from intentional self-inflicted injury.

On the trial both plaintiff and defendant asked for a directed verdict. But the District Judge submitted the issues to the jury, with the result that a verdict was found for the defendant. Since the plea in abatement does not challenge the jurisdiction of the federal court, but only raises the point that the action should have been brought in the Western instead of the Eastern District of Virginia, it may be laid aside for the moment; for the plaintiff, having brought the action in the Eastern District, cannot allege that it was not properly brought, and the point is important to the defendant only in the event that reversible error be found in the conduct of the trial on the merits.

The plaintiff first contends that the notice 10 days after death required by the provision of the constitution above quoted has no application to a case of instantaneous death, and that the jury should have been so charged. The liability of the order as fixed by the constitution is for--

'bodily injury effected through external, violent and accidental means which alone and independent of all other causes shall occasion death immediately or within six months from the happening thereof.'

It is therefore perfectly clear that the requirement of notice 'in the event of death resulting from external, violent and accidental means as hereinbefore provided' applies to a death resulting 'immediately' from the injury.

It is true, as said in the argument of plaintiff's counsel, that cases might arise where from lack of knowledge of the death or other causes it would be impossible for the beneficiary to give notice 10 days after the death. But this is not a case of that kind. The fact that a contract may become impossible of performance from circumstances beyond the control of the party obligated does not affect its validity nor relieve from performance when possible.

The instructions of the court on this point were equivalent to a direct instruction to the jury that the conditions as to notice and furnishing proof of loss had been waived by the defendant. It appears clearly from the record and from the excellent statement of the evidence in the brief of counsel for the plaintiff that the facts from which the jury were told they should infer waiver were either not disputed or established by uncontroverted testimony. Hence it is impossible not to infer that the jury must have found that the defendant had waived the requirements of the policy as to notice and proof of death, and there is no ground therefore for the plaintiff to complain of the failure to give a direct instruction that the defendant had waived the provision of its constitution pertaining to notice and proof of death.

The important question is whether the plaintiff was entitled to an instruction that Eugene M. Parrish had not committed suicide and that the plaintiff was therefore entitled to recover. On this subject the charge was as follows:

'The court charges you that on the issue of suicide raised by the defendant as a ground for avoiding the payment of the policy sued on, the burden of proof is upon the defendant to establish such defense. That the presumption, notwithstanding the finding of the dead body of the insured in the position described in the testimony, with his hands on the pistol lying between his legs, and the hole in his head, is that he met his death accidentally, and that the plaintiff is entitled to recover, unless the defendant can overcome the burden thus placed upon it; that is to say, unless the testimony excludes all reasonable hypothesis that the shooting was accidental, and you are convinced that the deceased intentionally took his life by inflicting the wound in his head.' The plaintiff's position is that the District Judge should have held and charged as a matter of law that the evidence did not exclude all reasonable hypotheses that the shooting was accidental, and that the verdict should be for the plaintiff.

There was little difference as to the facts; the main issue is the inference to be drawn from them. Eugene M. Parrish was a traveling salesman about 25 years old, in excellent health successful in business, sunny and bright in disposition, held in high esteem, and, so far as known, free from serious anxiety or trouble. Early in the afternoon of Thursday, May 27, 1911, he arrived at...