PLANTERS'BANK OF TUNICA, MISS. v. New York Life Ins. Co.

• Decision Date: 25 February 1926
• Docket Number: No. 4512.,4512.
• Parties: PLANTERS' BANK OF TUNICA, MISS., et al. v. NEW YORK LIFE INS. CO.
• Court: U.S. Court of Appeals — Fifth Circuit

11 F.2d 602 (1926)

PLANTERS' BANK OF TUNICA, MISS., et al. v. NEW YORK LIFE INS. CO.

No. 4512.

Circuit Court of Appeals, Fifth Circuit.

February 25, 1926.

J. W. Cutrer, of Clarksdale, and C. A. Jaquess and John W. Dulaney, both of Tunica, Miss. (W. L. Bankston, of Tunica, Miss., and Edward W. Smith, of Clarksdale, Miss., on the brief), for plaintiffs in error.

Robt. H. Thompson and J. Harvey Thompson, both of Jackson, Miss., Carruthers Ewing, Robt. E. King, and Earl King, all of Memphis, Tenn., and Louis H. Cooke, of New York City (Ewing, King & King, of New York City, on the brief), for defendant in error.

Before WALKER, BRYAN, and FOSTER, Circuit Judges.

FOSTER, Circuit Judge.

On October 4, 1921, the New York Life Insurance Company, defendant in error, issued its policy on the life of Simon Caplan for $25,000. The policy provided for payment of double indemnity in the event that "the death of the insured resulted directly and independently of all other causes from bodily injury effected solely through external, violent, and accidental cause." The policy also provided that "this double indemnity benefit will not apply if the insured's death resulted from self-destruction, whether sane or insane." The policy further provided: "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."

On December 12, 1921, the policy was assigned to the Planters' Bank of Tunica, Miss., one of the plaintiffs in error. On April 29, 1923, within two years after the policy was issued, Caplan died a violent death. Thereafter, Mrs. Lena R. Perry, the other plaintiff in error, was qualified as administratrix of Caplan's estate. Proofs of death were furnished and demand was made upon the insurance company for double indemnity under the policy, $50,000. This was declined. The insurance company denied liability and tendered the amount of premiums received. Suit was then brought in the circuit court of Tunica county, Miss., and was later removed to the District Court by defendant. At the close of the evidence a verdict was directed for defendant. Error is assigned to this.

The undisputed facts regarding the death of the insured are these:

On April 29, 1923, which was a Sunday, Caplan did not appear at his usual hour for dinner, and later a search was made for him. His body was...