Stilwell v. Travelers Insurance Company

• Decision Date: 17 February 1964
• Docket Number: No. 20410.,20410.
• Citation: 327 F.2d 931
• Parties: Delores STILWELL, Appellant, v. The TRAVELERS INSURANCE COMPANY, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

327 F.2d 931 (1964)

Delores STILWELL, Appellant, v. The TRAVELERS INSURANCE COMPANY, Appellee.

No. 20410.

United States Court of Appeals Fifth Circuit.

February 17, 1964.

John K. Calhoun, Atlanta, Ga., for appellant.

Burt DeRieux, Atlanta, Ga., for appellee.

Before TUTTLE, Chief Judge, and BROWN and BELL, Circuit Judges.

GRIFFIN B. BELL, Circuit Judge:

Appellant claimed accidental death benefits under the terms of a group insurance policy which provided payment if bodily injury was "effected * * * through * * * accidental means." The immediate cause of death, according to the death certificate, was "accidental death due to voluntary hanging."

Whether the means was accidental or intentional was a question of fact, which in this case was submitted to the jury. United States Mutual Accident Association v. Barry, 1889, 131 U.S. 100, 9 S.Ct. 755, 33 L.Ed. 60; and Atlanta Accident Association v. Alexander, 1898, 104 Ga. 709, 30 S.E. 939, 42 L.R.A. 188. Appellant moved for a new trial after entry of judgment on the jury verdict in favor of the insurance company. This motion was denied, and no appeal was taken. Thereafter, she sought relief from the judgment under the provisions of Rule 60(b) (2), F.R.Civ.P., on the ground of newly discovered evidence, which was not discovered in time to move for a new trial under Rule 59(b), F.R.Civ.P. This motion was likewise denied, and this appeal assigns the order of the District Court in this respect as error.

The facts demonstrated a transvestite type of hanging. There was no contention that death was intentional. The object of the hanging was to accomplish a momentary state of unconsciousness through strangulation, stopping short of death by the use of a fail-safe technique in the hanging process. The evidence on the trial described this technique as consisting of something in the nature of a platform or ladder to step back on in the event it became necessary while decedent was suspended in the hanging position, and a type of loop employed in the noose which could be released by pulling the ends of the rope.

The newly discovered evidence consists of a theory or fact based on the type of loop that was used by decedent in the rope by which he was strangled. Contrary to the proof on the trial that the rope was to be released by pulling one or the other end of it, appellant has now discovered that the loop used would hold only while external pressure, such as by the hand, was being applied to it. Thus, as decedent approached unconsciousness his hand would fall away from the rope or loop, thereby effecting release and a termination of the suspension.

The essence of the new evidence is by way of proof of a greater or more efficient fail-safe technique. The point of the motion and the affidavits filed in support of it is that a loop which...