Travelers Ins. Co. v. Wilkes

• Decision Date: 18 April 1935
• Docket Number: No. 7639.,7639.
• Citation: 76 F.2d 701
• Parties: TRAVELERS' INS. CO. v. WILKES.
• Court: U.S. Court of Appeals — Fifth Circuit

76 F.2d 701 (1935)

TRAVELERS' INS. CO. v. WILKES.

No. 7639.

Circuit Court of Appeals, Fifth Circuit.

April 18, 1935.

Francis M. Holt, Sam R. Marks, and Harry T. Gray, all of Jacksonville, Fla., for appellant.

Frank F. L'Engle, of Jacksonville, Fla., for appellee.

Before BRYAN, SIBLEY, and HUTCHESON, Circuit Judges.

SIBLEY, Circuit Judge.

The policy insured Beverly Corbin Wilkes "against loss resulting from bodily injuries effected directly and independently of all other causes through accidental means, (suicide, sane or insane, not covered), as specified in the following schedule. * * * For loss of life the principal sum" $10,000; his wife being named as beneficiary. The declaration was framed in two counts alleging insured's death through accidental means, the first count averring it to have been due to a bullet from a pistol "accidentally discharged by the insured or by some person unknown to the plaintiff." The second count alleged the pistol to have been fired "by a person or persons unknown to the plaintiff without the aid or design of the insured and without fault or provocation on his part." The allegations of the first count of an accidental shot exclude suicide. The allegations of the second count show the means of death to have been accidental so far as the insured was concerned and not suicidal, and set forth a cause of action. Mutual Life Ins. Co. of New York v. Sargent (C. C. A.) 51 F.(2d) 4. The demurrers to each count were properly overruled.

The pleas specifically denied the allegations quoted from each count, and denied generally that the death was effected through accidental means. There was also an affirmative plea to each count that the death was due to suicide. The verdict was for the plaintiff, but did not specify on which count it was rendered. An instructed verdict was moved by the defendant on the whole record, and as to each count separately, and exceptions were reserved also touching charges given and refused with reference to the burden of proof as to suicide.

The evidence without important conflicts showed facts outlined as follows: At about 8 o'clock on Thursday morning, October 29, 1931, the insured was found dead, stretched at full length diagonally upon a bed in a tourist camp cabin, both hands lying palm down on his stomach with fingers extended, the left hand about the waistline and the right lower down. His head was upon the pillow near the center of the bed, his feet near the right-hand edge. He was in his underclothes, barefooted, with the bedclothes tucked around him from the waist down, feet together, and toes pointing up. In the crook of the left elbow, with the barrel up, was a United States Army Colt .45 automatic pistol, butt well down between the arm and body, hammer cocked and pressed into insured's side so as to leave a mark there. Two empty pistol cartridges were upon the floor near the bed. The insured's head had been penetrated by a bullet entering just above the canal of the right ear, passing through the brain and out a little higher over the left ear and more to the rear. Brains, bone, and blood were upon the pillow to the left of the head. Embedded in the cabin wall to the left of the bed a few inches higher than the pillow level was a bullet, which on test showed blood upon it and which fitted the pistol and bore left-handed rifling marks characteristic of the Colt pistol. There were no burns or powder marks around the entrance wound externally, but there were powder marks on the underside of flaps of skin there which were blown outwards. The sutures of the skull were loosened. Physicians who were experts touching such wounds agreed that the weapon must have been against or very close to the head, and that the expansion of the gases from the pistol barrel had taken place within the skull, bursting it, and that death was instantaneous, so that no voluntary movement was possible after the shot; and that in the case of a human, differing in that respect from some lower animals, there would be instant collapse and relaxation of all muscles. The cabin walls showed the marks of another bullet which had passed above insured's head and struck behind the head of the bed (it having no solid headboard) a little above and to the left of the insured's head. It had penetrated the corner of the framing, struck the weatherboarding further to the left and a little higher, whence, deflected, it had passed through the other wall at the left side of the bed near where the other bullet was embedded. The doors of the cabin were found fastened on the inside.

There were no signs of any struggle. Coat and pants were thrown on a chair. A quarter and a copper were in the pants pocket, but no money in a billfold. To the right of the bed near its head, and not more than three feet from insured's body, was a window opening on a porch. The window was found with shade drawn, sash down but not fastened, and outside the sash a collapsible windowscreen which could be taken out and put in from the porch without difficulty. A corner washstand stood near the window at the head of the bed. The body was discovered by removing the windowscreen, opening the sash, pushing up the shade, and stepping into the room.

The cabin was one of a group of four or five standing some distance apart in an inclosure surrounded by a fence on three sides and on the fourth by a navigable creek some 40 or 50 feet wide. Mrs. Jork, the woman who owned them, lived in one near the entrance and furnished meals and drinks to persons who rented them by the night. The place was a half-mile off the highway from Jacksonville, Fla., to Atlantic Beach in a sparsely settled neighborhood.

The insured was superintendent of a telegraph company's business in Jacksonville, was 38 years old, married, and had a 3 year old son. He was somewhat in debt, had had a salary cut, and his finances were not good but were not desperate. At the beginning of the year he had been sued by his wife for a divorce, she alleging intoxication and cruel treatment, but the suit had been dismissed on his promise not to drink more, which promise she testified he had kept and they had since lived more happily than ever. His mother died early in October in Virginia, and the wife and child had remained away on a visit after the funeral, but were expected home soon. On the Saturday before his death insured was drinking, and spent Saturday night and Sunday at his club. He was then seen in possession of considerable money. He gambled at times, and made and lost money that way. On Monday he went to his work and was in his usual good spirits, but did not appear Tuesday or Wednesday. He was seen Tuesday afternoon in Jacksonville. It is testified, nevertheless, that about 11 on Tuesday morning he came to Mrs. Jork's in a car furnished him by the telegraph company and rented this cabin, saying that he expected a friend to join him for dinner. No one came. He had her send a meal in the...