Smith v. Mutual Life Ins. Co. of New York
| Decision Date | 03 April 1929 |
| Docket Number | No. 5415.,5415. |
| Citation | 31 F.2d 280 |
| Parties | SMITH v. MUTUAL LIFE INS. CO. OF NEW YORK. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Jos. D. Barksdale, Otis W. Bullock, and Howard B. Warren, all of Shreveport, La., Winston K. Joffrion, of Alexandria, La. (Joffrion & Joffrion, of Marksville, La., and Barksdale, Bullock, Warren, Clark & Van Hook, of Shreveport, La., on the brief), for appellant.
Richard B. Montgomery and Richard B. Montgomery, Jr., both of New Orleans, La., R. F. White, of Alexandria, La., and Frederick
L. Allen, of New York City (White, Holloman & White, of Alexandria, La., on the brief), for appellee.
Before BRYAN and FOSTER, Circuit Judges, and GRUBB, District Judge.
Appellant was the beneficiary of three policies of insurance issued by the appellee insurance company on the life of her husband, Robert Hill Smith. Each of the policies provided for the payment of double indemnity upon proof that the death of the insured resulted from bodily injury "effected solely through external, violent and accidental means." The face amounts of the policies were paid without prejudice to the right to maintain suit upon the double indemnity provisions.
Appellant's petition alleged that one W. D. Haas, "without any excuse, justification or provocation whatsoever, shot the said Robert Hill Smith with a pistol, inflicting on his body a mortal wound, while decedent was sitting or standing at his desk in his usual place of business," etc. The insurance company pleaded a clause of the policies which provides: "Double indemnity shall not be payable in the event the insured's death * * * result from any violation of law by the insured," and alleged that the death of the insured resulted from his violation of the law, in that it occurred while he was engaged in assaulting and attacking the person who shot him. Trial by jury was waived in writing, and the District Judge rendered judgment for the insurance company.
There were no special findings of fact. Both parties moved for a judgment, but the evidence was not brought up for review. The only question raised by appellant is whether the trial court erred in refusing to adopt as a correct proposition of law the following request: "That upon the whole evidence and admissions in defendant's answer the burden is on the defendant to prove that the death was the result of causes enumerated in the exceptions contained in the double indemnity clause of the policies and specially pleaded in defense."
The above request, although it was duly excepted to, it is...
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