Dortch v. New York Life Insurance (268 F.2d 149, 1959)

VOGEL, Circuit Judge.

These appeals arise out of the issuance-of two insurance policies by New York Life Insurance Company on the life of Reuben W. Bredlow, now deceased, and: in which plaintiffs are the named beneficiaries. Diversity of citizenship and amounts involved supply the requirements for federal court jurisdiction.

Both policies provide for double indemnity benefits in the event that death, of the insured resulted directly and independently of all other causes from bodily injury effected solely through external violent and accidental causes or means.

George L. Dortch and Gwendolyn A. Bredlow, hereinafter referred to as plaintiffs, are the appellants in No. 16,052, in-which the main question for determination is whether there was an adequate-evidentiary basis to make the issue of suicide as opposed to accidental death one of fact for the jury. In No. 16,053, New York Life Insurance Company, hereinafter referred to as defendant, is the appellant. Its appeal asserts that in the event of a reversal in No. 16,052, which would sustain the jury’s finding that the insured’s death was accidental, a new trial should be granted because the trial court made numerous errors which should require the remanding of the case for a new trial.

Plaintiffs each filed proof of death claim with the defendant wherein death by accidental gunshot wound and double indemnity benefits were claimed. The defendant paid each of the plaintiffs $5,-000.00, being the principal sum in each policy, but refused to recognize liability under the double indemnity clause. It asserted as an affirmative defense that death resulted from suicide or self-destruction. The cases were joined and tried to a jury November 5 and 6, 1957. The only question presented to the jury was whether the insured committed suicide. The jury returned a verdict for .plaintiffs.

At the close of plaintiffs’ case and at the close of the trial, the defendant had moved for a directed verdict in each case. On November 15, 1957, defendant filed a motion for judgment in accordance therewith and in the alternative moved for a new trial. On December 9, 1957, the trial court entered judgment in accordance with the jury verdict in each case in the amount of $6,618.76 (policy $5,-000.00, statutory attorney’s fees $750.00; 12% penalty and interest at 6% from November 6, 1957). Thereafter on December 16, 1957, the court heard argument on defendant’s motion for judgment notwithstanding the verdict, or, alternatively, for a new trial.

Some months later, on April 28, 1958, the trial court entered an order directing judgment for defendant and denying the alternative request for a new trial. From this order plaintiffs filed notice of appeal •on May 8, 1958, (case No. 16,052) and