State Life Ins. Co. v. Allison

• Decision Date: 30 November 1920
• Docket Number: 3585.
• Citation: 269 F. 93
• Parties: STATE LIFE INS. CO. v. ALLISON.
• Court: U.S. Court of Appeals — Fifth Circuit

269 F. 93

STATE LIFE INS. CO. v. ALLISON.

No. 3585.

United States Court of Appeals, Fifth Circuit.

November 30, 1920

J. T Stokely and Frank Dominick, both of Birmingham, Ala. (Stokely, Scrivner & Dominick, of Birmingham, Ala., and Chas F. Coffin, of Indianapolis, Ind., on the brief), for plaintiff in error.

Erle Pettus, of Birmingham, Ala., for defendant in error.

Before WALKER, BRYAN, and KING, Circuit Judges.

WALKER Circuit Judge.

This was an action by the defendant in error, the beneficiary named in a policy issued January 3, 1916, whereby the plaintiff in error (herein referred to as the insurer) insured the life of Jack Stewart Allison in the sum of $5,000, and further obligated itself as shown by the following provision contained in the policy:

'Double Indemnity.

'During the premium-paying period of this policy and excluding any time while the same may be in force as extended insurance, all premiums having been duly paid, and this policy being then in force, in the event of the death of the insured resulting from bodily injury, sustained and effected directly through external, violent, and accidental means (murder or suicide, sane or insane, not included), exclusively and independently of all other causes, provided such death shall occur within ninety (90) days from the date of the accident, the company will pay to the beneficiary or beneficiaries hereunder, in addition to the amount otherwise due, under this policy, the sum of five thousand dollars.'

The death of the insured having occurred, the insurer, after receipt by it of the prescribed notice of the death, paid $5,000, which was accepted by the beneficiary without prejudice to her claim, asserted by the suit, of the right to recover an additional $5,000 under the abovequoted 'double indemnity' provision of the policy.

The claim asserted by the suit was duly resisted. In the trial uncontroverted evidence was adduced to the following effect: The insured entered the United States army in the summer of 1917. He then was within the draft age and was subject to draft, but volunteered before he was called. His name was among those first drawn. He went to France with his command in the spring of 1918. He was killed in the Argonne-Meuse battle in France on October 14, 1918, the first day of that battle. He was first lieutenant of his company and was leader of a platoon engaged in that battle. In pursuance of orders he led his platoon in an advance against the Germans, who were retreating; his company being part of a force, consisting of several regiments, which was engaged in that advance. When that advance movement had been in progress about 30 minutes, the force engaged in it was held up by a German machine gun barrage. At the place where the troops of which the platoon led by Lieut. Allison was a part were so held up, German shells were being thrown over, and Allied shells, fired from a point several miles in the rear, were falling short and exploding. At that time and place, and just after Lieut. Allison had got down in a little shell hole, a piece of shrapnel from an exploded shell struck him just back of the top of his head, went through the steel helmet he had on and into his brain, killing him instantly. There was no way of determining whether it was an Allied shell or a German shell that caused his death. The policy was in force when the insured's death so occurred, all premiums having been duly paid.

The insurer excepted to the action of the court in directing a verdict in favor of the plaintiff, and to the refusal to give requested written charges, among them the following:

'Unless the jury are reasonably satisfied from the evidence that Lieut. Allison was killed by a shell fired by the American forces, you cannot find for the plaintiff.'

'The court charges the jury that, even though the plaintiff's son may have been killed by an American shell, yet if he met his death while engaged in battle with the Germans, the defendant company would not be liable.'

The policy contains no provision whereby the liability incurred by the insurer is affected as a result of the insured becoming a...