Union Mut. Life Ins. Co. of Portland, Me., v. Payne

• Decision Date: 20 November 1900
• Docket Number: 906.
• Citation: 105 F. 172
• Parties: UNION MUT. LIFE INS. CO. OF PORTLAND, ME., v. PAYNE et al.
• Court: U.S. Court of Appeals — Fifth Circuit

105 F. 172

UNION MUT. LIFE INS. CO. OF PORTLAND, ME., v. PAYNE et al.

No. 906.

United States Court of Appeals, Fifth Circuit.

November 20, 1900

Felix H. Robertson, for plaintiff in error.

Robert B. Hazlewood and Cecil H. Smith, for defendants in error.

Before PARDEE, McCORMICK, and SHELBY, Circuit Judges.

SHELBY Circuit Judge.

On the 11th of July, 1893, the Union Mutual Life Insurance Company of Portland, Me., a corporation duly incorporated under the laws of Maine, issued a policy for $2,000 on the life of James B. Payne. The policy was payable to Myra A. Payne, the wife of the insured. James B. Payne died on December 23 1893. Myra A. Payne assigned an undivided one-half interest in the policy to R. R. Hazlewood and C. H. Smith. Myra A Payne and Hazlewood and Smith, citizens of the state of Texas, brought this action on the policy against the Union Mutual Life Insurance Company. The defendants filed an answer denying the averments of the petition, and alleging that the death of James B. Payne was caused by suicide. The answer showed also that the application for the insurance made by James B. Payne and Myra A. Payne contained the following statement: 'And that self-destruction, sane or insane within one year from the date of issue of policy are also risks not assumed by the company in the contract. ' The application was made a part of the contract of insurance. It was further stated in the answer that Myra A. Payne, in making the proof of the death of the insured, had made an affidavit that James B. Payne had committed suicide. The plaintiffs, in their replication, averred that, since Myra A. Payne had signed the proof of death, she had learned that the immediate cause of the death of James B. Payne was not suicide, but that he was assassinated, or that his death was the result of an accident, and that when Myra A. Payne signed the proofs of death she was in great trouble and distress on account of the death of her husband, and in feeble health, and that she signed the proofs of death without reading them. The case was tried on these issues. The plaintiffs offered in evidence the policy and the assignment of the undivided one-half interest. Myra A. Payne, as shown by the bill of exceptions, testified as follows:

''I reside in Waco, Texas. I knew James B. Payne. He was my husband. He is dead. He died in Waco, Texas, on the 23d day of December, 1893.' The witness being shown said insurance policy said she was the person named in said policy as beneficiary, and that the James B. Payne named as the person whose life was insured was her husband. She had by her husband three sons, respectively eleven, thirteen, and nineteen years of age, at death of J. B. Payne. He owned a ranch of one thousand acres in the country near Waco, and just before his death he was making plans to place his oldest son in charge of this ranch. The other two boys were in school. That he was very much devoted to his boys. She and her husband lived happily together, and never had any disagreement. That she never at any time said anything, or heard her husband say anything, or know anything in his life, that indicated any intention on his part to commit suicide, and that he had no reason to do so.'

On cross-examination Mrs. Payne said:

'I have testified by depositions twice in this case. After the death of my husband, James B. Payne, Messrs. Jones, Kendall & Sleeper were my attorneys, and they aided me in the conduct of my business. ' (Being shown an affidavit signed by her, and sworn to before W. M. Sleeper, notary public of McLennan county, Tex., on the 15th of January, 1894, the witness declared the signature to said affidavit to be her genuine signature.) 'The W. M. Sleeper who signed the jurat to said affidavit was at that time a member of the firm of Jones, Kendall & Sleeper. The proof of loss or death was prepared under the direction of my attorneys. I was at that time in no condition to attend to my business, and I have no recollection of having signed or sworn to that proof of death.'

On redirect examination Mrs. Payne testified:

'On the morning of Mr. Payne's death I went into his bedroom to call Mr. Payne, who was called for by one of the men working for him; and as soon as I got into the room I could tell from the look on his face that he was dead. I screamed, and ran from the room. I did not see any wound or pistol, and I never saw the body afterwards. I do not know of my own knowledge what caused his death; only what others told me.'

The defendant company then offered in evidence the application for the insurance policy, signed by the insured, Payne, and his wife. It contained the stipulation as to suicide which has already been quoted. The defendant company then offered in evidence an affidavit or proof of death, signed by Myra A. Payne, dated January 15, 1894, which contained the following questions and answers:

'(11a) Remote cause of death? (a) Nervous depression, aggravated by grippe. (b) When did health of deceased first begin to be affected? (b) About two or three months before his death. (c) Immediate cause of death? (c) Self-destruction. (d) Duration of last illness? (d) About two weeks. (e) Give every particular in relation thereto within your knowledge. (e) Had been unwell for a month or two. Was attacked by grippe about two weeks before his death. Became melancholy, and, when alone, shot himself. * * * (13a) Did the deceased violate any condition of above-mentioned policy in respect to residence, travel, occupation, dueling, suicide, or violation of law? (a) Not within my knowledge, except suicide, if that be violation.'

Depositions of Myra A. Payne were in evidence, in which she testified:

'I was told that the immediate cause of his death was a pistol shot, but I never saw it, and do not know. * * * I was greatly depressed, and cannot say what the affidavit contained. I was not in a frame of mind to know much about anything. All my papers were prepared for me by others, and will have to speak for themselves.'

The following is the statement made by Myra A. Payne before the coroner:

'My name is M. A. Payne. I was the wife of the deceased, J. B. Payne. Mr. Payne died in McLennan county, Texas, on the 23d day of December, 1893. He was in his fiftieth year at the time of his death. Deceased had been sick for about two weeks before his death, but on the day before his death and the day preceding that he had been able to go from his house down town, but he remained in town but a few hours each day. He was not ill enough to call a physician. We thought he had la grippe. He was nervous, and complained of feeling bad and having no appetite. On the morning of his death he did not get up to breakfast. He said he did not want any. I heard a noise about half past eight, of earlier, which I thought was the slamming of a door. About an hour afterward, as nearly as I can judge, I went to the room of deceased. I went into the room, and saw deceased on the bed. Before I got to the bed, I discovered that he was dead. He was lying on his back, with a pistol in his right hand, which was lying across his breast. There was a pistol or gunshot wound in the right temple. Deceased seemed very much depressed during the whole two weeks of his illness. The room occupied by deceased was on the second floor. I was in the dining room, on the first floor, at the time I heard the noise which I now think was the explosion of the pistol. I was on the place at the time with my three children, James B. Payne, Mack Payne, and Walter Payne, aged twenty, twelve, and eleven years, respectively, with me. No one else was on the place. Mr. Oscar Armstrong came to see Mr. Payne later, and I went to his room to see if he would see him. I knew nothing of deceased's having a pistol with him until the time of his death.

'(Signed) M. A. Payne.'

In reference to this statement Mrs. Payne testified:

'There are some errors in that statement. I did not notice the position of Mr. Payne's hands. I only saw his face. * * * I can't remember much, if anything, that happened at that time. I recognize my signature to the original paper, but I can't remember signing my name to the paper.'

The witness Mrs. Payne further testified:

'There are two doors and three windows opening into Mr. Payne's room. One door opens into the upper hall; the other door opens onto the upstairs veranda. Two of the windows open from the second story towards Fifth street. The other window opens on the upstairs gallery. There is only one pair of stairs which leads into the upper hall into which one of the doors of Mr. Payne's room opens. Four doors open into that hall. No stairway from the outside, but a person might pass from the upper hall, through a room adjoining the one in which Mr. Payne's body lay, out onto the upper outside gallery, and then into Mr. Payne's room through the door or the window.'

The bill of exceptions states that 'other evidence' was introduced, but that it was not 'material to these exceptions.' There was a verdict and judgment on the policy against the insurance company.

The only questions before the court for decision are raised by the following four assignments of error.

'(1) The court erred in refusing to give the first special charge asked by the defendant, and being as follows, viz 'Under ordinary circumstances it is true that, if there be a doubt whether the death of a person assured was the result of accident or of suicide, this doubt must be solved in favor of the theory of accident. But in this particular case the plaintiff Myra A. Payne, having in her proof of death stated to the defendant company that the death of James B. Payne was 'self-destruction,' it is incumbent on her to satisfy the jury that in this statement she was...