Pilot Life Insurance Company v. Boone, 15916.

• Decision Date: 27 August 1956
• Docket Number: No. 15916.,15916.
• Citation: 236 F.2d 457
• Parties: PILOT LIFE INSURANCE COMPANY, Appellant, v. Jimmie Fay Butler BOONE, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

236 F.2d 457 (1956)

PILOT LIFE INSURANCE COMPANY, Appellant, v. Jimmie Fay Butler BOONE, Appellee.

No. 15916.

United States Court of Appeals Fifth Circuit.

August 27, 1956.

Ralph B. Tate, R. Foster Etheredge, Birmingham, Ala., C. R. Wharton, Greensboro, N. C., Wharton & Wharton, Greensboro, N. C., Spain, Gillon & Young, Birmingham, Ala., of counsel, for appellant.

William Conway, Leigh M. Clark, Birmingham, Ala., for appellee.

Before HUTCHESON, Chief Judge, and RIVES and BROWN, Circuit Judges.

RIVES, Circuit Judge.

This appeal is from a judgment for $20,000 entered upon the verdict of a jury in a suit on two policies whereby appellant insured the life of appellee's husband, Captain Harry C. Boone. The sole issue was whether Captain Boone committed suicide.

Each of the policies was in the amount of $10,000; they were issued respectively on May 22, 1953 and October 1, 1954; each contained the following provision:

"7. Suicide. — If the Insured shall commit suicide, while sane or insane, within two years from the date hereof, this Policy shall be null and void, except for an amount equal to the sum of the premium paid hereon less any indebtedness hereon."

The date of the death of the insured was November 10, 1954, within two years from the date of each policy.

About three o'clock in the afternoon of the date of Captain Boone's death, a South Carolina Highway Patrolman observed an automobile parked on an old roadbed to the side of Highway 76 about three-quarters of a mile outside of the city limits of Columbia, South Carolina. He stopped to investigate because there had been complaints of people dumping trash and rubbish at that place.

The keys were still in the car. On the front seat was an Army hat or cap. In the open glove compartment was an Army duty belt and a pistol holster of which the flap was open. The officer stepped up on an embankment and took several steps over into the adjacent woods before observing a man's foot and leg some sixty feet further on. When the officer got within two or three yards of the man's foot, he could see the entire body and "knew from looking at him that he was dead." He immediately returned to his patrol car from which he radioed the Highway Patrol Station to notify the Sheriff and the Coroner. In turn those officials notified the Criminal Investigation Department of the Army. The Sheriff, Coroner and several Army officers went immediately to the scene.

They found a pistol wound in the right temple just above the right ear with the exit wound in the left temple just forward of the left ear. The body was lying on its back, with the right leg folded under, left arm stretched outward and right arm out and down toward his right knee and leg. By his right foot was an Army .45 calibre automatic pistol "cocked and ready to fire with one bullet in the barrel in the chamber."

A careful inspection of the surrounding area disclosed no evidence of anyone other than Captain Boone having come into those woods. There were only two partial footprints which were on an embankment several feet from his body. There was no sign of a scuffle. No blood was found at any place except near the body and spattered on the foliage to the left of the body. The Coroner testified that the wound appeared to have been made by a .45 calibre pistol. He had received a report by telephone from a Captain Peach that the only fingerprints found on the pistol were those of Captain Boone. Such hearsay testimony was the only evidence of this important circumstance. Perhaps from oversight, there was no proof as to whether the pistol had been recently fired. Assuming that it had been, the shell of the discharged cartridge could not be located by a thorough search, though this could be explained by the fact that the body was near a deep ravine into which the empty cartridge shell may have been thrown when the pistol discharged.

Captain Boone was a regular Army Officer stationed at Fort Jackson, Columbia, South Carolina, where he lived with his wife and their four children. On the morning of November 10, 1954, he got up around 6 o'clock, dressed, drank a glass of milk, and he and Captain Niforth, a friend, left in Boone's car for Fort Jackson; he worked that morning in the same office (separated by a partition) with Niforth; around 10 A.M. he saw his immediate superior, Colonel Bone, and asked and received permission to have the remainder of the day off "to take care of some personal business"; Niforth saw him leave the office around 10:20 and at that time he said he was leaving early "to take care of some personal business"; somewhere in the neighborhood of 10 A.M. Captain Boone went to the Supply Room of Headquarters Company, 101st Division, and asked the Supply Clerk, James M. Edney, if they had any weapons and was told that they had carbines and .45 pistols; Boone said he would like to check out a .45; the Supply Clerk went for a .45, a holster and a pistol belt and returned and asked Boone if that was what he wanted; he said, "Yes"; the Clerk inquired if he wanted the pistol temporarily or for a long time and Boone replied that he would have it back the next day but on being reminded that the next day was a holiday (Armistice) and that the supply room would be closed, Boone replied that he would bring it back the following morning; before leaving Boone asked the Clerk if they had any ammunition and he was told that they did not have any but that he might be able to get some from an M.P. Company; he signed for the unloaded pistol, holster and belt; between approximately 10:30 and 10:45 Captain Boone went to the office of Captain Wolfe, the Regimental Adjutant, and went into the Colonel's office, greeted the Colonel and the Executive Officer, remained there for a few minutes and then came out to Captain Wolfe's desk and asked Wolfe if he had any .45 calibre ammunition, saying, "I am going to pick up a payroll" — the testimony is undisputed that on November 10, 1954, Captain Boone had nothing whatsoever to do with picking up a payroll, but on the contrary from around 10:00 A.M. he had Colonel Bone's permission to be off duty and leave the post. It was not part of Captain Boone's duties to handle any part of the payroll at any time; Wolfe had some .45 calibre ammunition and gave Boone approximately five rounds; when Wolfe handed the ammunition to Boone, Boone said: "I will bring this back this afternoon", but Wolfe replied that it didn't matter as he, Wolfe, was not charged with the ammunition. From then on, the whereabouts of Captain Boone are unknown. Around 3:10 P.M. on that same day (November 10, 1954), South Carolina Highway Patrolman O. L. Derrick found Captain Boone's body.

No suicide note was discovered, nor was there any evidence of declarations of intention to commit suicide. To the contrary, Captain Boone appeared to be happy in his work and in his family life. He was in good health, and in four years would be entitled to retirement privileges from the Army. He was of a "happy-go-lucky, very carefree" disposition and a devoted husband and father. He had a base pay of $580 per month. The only evidence of any motive for suicide came in a deposition of the Sheriff in answer to a question to which the district court sustained objection, probably because of the form of the question, "Did you find any evidence whatsoever of any foul play?" The answer was in the negative, and the Sheriff continued to testify that he found in Captain Boone's automobile,

"It was two letters there — one addressed to Captain Boone from an oil company that they were going to — that they wanted him to bring his courtesy card in — he was owing a bunch of money; and another one where he had been turned down by some concern in Texas. He wanted to get an additional loan there and they turned him down."

While, as has been stated, that testimony was not legally introduced into evidence, the appellee widow testified:

"Q. Mrs. Boone, I will just ask you a few questions only in reference to a letter or some letters. You heard somebody testify about some letters in the car or some testimony from one of the deponents, something about a letter from some Oil Company about a credit card. Did you ever get that letter? A. No, sir, I never did.

"Q. Or something about a loan to a Finance Company or Federal Service Finance Company, a letter, did you get that letter? A. Yes, sir.

"Q. That was in his belongings that was sent back to you after the officers had custody of it? A. Yes, sir."

The widow further testified that on the night before his death, just before going to a meeting of a fraternal order, Captain Boone had $60 on his person with which he told her that he was going to pay some bills the next day. The bills were not paid by Captain Boone, but were later paid by his widow. Only ninety-nine cents was found on his person after his death. The widow was cross-examined as to whether she had not made a statement to Mrs. Niforth on the morning of or after Captain Boone's death,

"Q. I will ask you to refresh your recollection, Mrs. Boone, did you not tell Mrs. Niforth after Captain Boone\'s death on the morning of his death that he had six dollars and that he had given you five dollars and that later when his body, when his personal effects were returned to you, that there was returned to you the sum of approximately 97 cents. Did you state that to Mrs. Niforth? A. I don\'t remember anything like that."

Mrs. Niforth was not produced as a witness.

The evidence was thus not fully developed as to several important circumstances, e. g. whether the pistol borrowed by Captain Boone had been fired; whether the pistol bore only Captain Boone's fingerprints; what became of three of the cartridges given him by Captain Wolfe; whether the letters indicating that Captain Boone was badly in debt actually existed; whether the testimony of the appellee as to the missing $60.00 was subject to contradiction or impeachment.

Because further evidence may be...