Tippens v. Metropolitan Life Ins. Co., 8773.

• Decision Date: 14 November 1938
• Docket Number: No. 8773.,8773.
• Parties: TIPPENS v. METROPOLITAN LIFE INS. CO.
• Court: U.S. Court of Appeals — Fifth Circuit

99 F.2d 671 (1938)

TIPPENS v. METROPOLITAN LIFE INS. CO.

No. 8773.

Circuit Court of Appeals, Fifth Circuit.

November 14, 1938.

Carl T. Hudgins, of Decatur, Ga., for appellant.

C. Baxter Jones, of Macon, Ga., and Walter G. Cornett, of Athens, Ga., for appellee.

Before SIBLEY, HUTCHESON, and McCORD, Circuit Judges.

HUTCHESON, Circuit Judge.

The suit, on a policy of life insurance providing double indemnity for accidental death, was against the insurer for both single and double indemnity.

Brought by the administrator on behalf of the insured's estate, the claim generally was that; one Annie Allen Ballard, living with insured as, but not legally, his wife, was, though not named as such, the real beneficiary of the policy; that, in a conspiracy with her mother, the nominal beneficiary, she had murdered the insured, and that therefore the insurer became obligated to the estate of the insured for both indemnities.

It was alleged that though advised and warned that it should not make payment to the beneficiary, the insurer, in disregard of the warning, and of the facts which it knew or ought to have known, had paid to the beneficiary the single indemnity provided in the policy for natural death, and had refused, and was refusing, the demand of the insured's estate to pay to it both the single and double indemnity due it under the policy.

Admitting that it had paid the beneficiary the ordinary death benefits provided for in the policy, defendant denied the plaintiff's claim of murder and conspiracy. Admitting that it had received a notice from the plaintiff, it denied that anything in plaintiff's notice or any facts which had come to its attention prior to the payment to the beneficiary, had shown or suggested any reason why it should not pay the beneficiary designated in the policy the ordinary death benefits due under it.

The issues having been thus joined, plaintiff, to maintain his claim, offered a mass of evidence. Some of it was original to this suit; a great part of it was that given in two former suits. One of these was a suit on the same claim appellant had earlier brought and been nonsuited in. One was a suit Annie Allen Ballard, as assignee of the beneficiary, had brought to recover double indemnity as for accidental death.

At the conclusion of plaintiff's evidence the court, on defendant's motion, ordered a nonsuit.

In support of his appeal from that order, appellant assigns two general grounds of error: (1) The sustaining of demurrers to certain portions of plaintiff's pleadings; (2) the nonsuit and dismissal of plaintiff's cause of action for insufficient evidence.

Without detailed discussion of the points made by the demurrers, and without setting out any of the pleadings to which they were sustained, it is sufficient to say that there was no reversible error in the rulings on the pleadings.

Both the first and second counts of plaintiff's petition contained many paragraphs repetitious in substance and to a great extent in verbiage, with the result that some of the same matters were set forth many times, and with slightly varying phraseology, so that the sustaining of the demurrers to specific paragraphs left the pleading in all substantial respects as it was before they were sustained. Further, plaintiff amended its petition after the exceptions were sustained, to again allege some of the matters excepted to, and in the course of the trial he was permitted the widest latitude in the offer of evidence.

If we should assume, which we by no means do, that any of the demurrers were wrongly sustained, it is plain that the error, if any, was harmless, and that these assignments present nothing substantial for our review. It remains only to consider whether plaintiff, under the applicable Georgia rule, "has proven the case alleged" * * * has presented "evidence sufficient for the jury to have made a favorable verdict." Clarke v. Order of United Commercial Travelers of America, 5 Cir., 79 F.2d 564, 565, 566. We think it clear that he has not.

Involved, confused, giving forth a most uncertain sound, the evidence as a whole leads now one way, now another, but never as evidence relied on for a verdict should, to a definite, probable conclusion.

A careful examination of the facts and circumstances preceding and connected with the finding of the body, and its condition when found, as the record discloses them, shows that at their best for the murder theory upon which appellant's case rests, they raise only a suspicion of foul play on the part of some one in no manner identified as the murderer; that they leave to surmise and conjecture not only who compassed Ballard's death, but whether his death was feloniously compassed by any one, or was rather the result of disease or accident, or of a combination of both. They certainly do not point with any definiteness to Annie Allen Ballard, for many years his actual, if not, because of the terms of Ballard's divorce decree, his legal wife, as his murderess, or connect her in any definite way with his death. Certainly they do not in any manner tend to prove a conspiracy between her and her mother, the named beneficiary, to compass it. A mind convinced beforehand of her guilt, and determined to find proof of it in any unfavorable circumstance, might see proof of it in some of the testimony, for to an accuser, as to the jealous, "trifles light as air are confirmations strong as proof of holy writ." But for the consideration of a jury, the facts and circumstances, given their greatest significance against the accused, prove no more than that, justly or unjustly, she thought the deceased was, and accused him of being, in a state of drunkenness, and angry with him for it, in her anger she berated, abused and struck him. No one saw her strike a lethal blow; no one testifies that she intended to do so, nor is there any circumstance in the record from which that intention can be reasonably inferred. Indeed, the circumstances tending to a contrary conclusion are so numerous, and so inconsistent with the theory that she did kill him, as to leave no firm or stable ground for a verdict that she did, to rest upon.

Ballard's body was found about 10:30 on Saturday morning, July 24th, lying on the pathway to the spring, at a distance from the house variously estimated at from 100 to 250 yards. It was stretched out on the ground without any wearing apparel on, except a hat, and with a sheet wrapped around it. The head was lying on some small rocks up next to the hog lot fence; part of the top rail had been split and pulled off the fence and was lying near Ballard, and there was a splinter and nail protruding from the fence post. A doctor was summoned, and in the afternoon an inquest was held after the body had been removed to Ballard's room. The verdict of the coroner's jury was that his "death was caused by a wound in the neck made by some cutting instrument." Annie Ballard returned from Gainesville at the time of the inquest, which was in the afternoon.

In due course Mrs. Lou Allen filed proofs of death, showing that death was the result of heart failure. On October 26, 1932, appellee issued its check to her order, the check was endorsed by Mrs. Lou Allen and Mrs. George H. Ballard, and the money was paid to the latter under an understanding she testified she had had when her mother was named beneficiary that this was done to protect Annie in receiving the money.

On January 9, 1933...