75 F.2d 758 | 5th Cir. | 1935
The appellee, Nellie F. Zimmerman, in September, 1929, brought two separate suits on policies of insurance on the life of her husband, Albert H. Zimmerman, alleging in one count that the insured died August 24, 1927, and that she was entitled to recover the face of the policy, and in a second count that the death resulted from external, violent, and accidental' means, to wit, drowning, whereby a double indemnity was due. The suits were tried together, and on .June 2, 1934, verdicts were rendered in favor of the defendants on the second count but in favor of the plaintiff on the first count. These appeals followed. We find it necessary to notice but two questions: (1) Whether evidence of the finding of a human femur across Indian river from the supposed place of drowning should have been excluded; and (2) whether a verdict should have been directed for the defendants.
Circumstantial evidence was relied on to show both that Zimmerman was dead and the time and manner of death; the theory being that he was accidentally drowned while wading in Indian river on Wednesday, August 24, 1927. He has not been seen or heard from since, unless two witnesses for the defendants say truly that he was seen by them, respectively, in North Carolina and in Honduras. These witnesses were so far impeached as to make their credibility a matter for the jury, and their testimony is not to be considered for present purposes. The evidence is that Zimmerman was married to appellee in 1910, when twenty-three years old. He bargained for a farm in Missouri for $13,000, but did not pay for it, and entered a hardware business. A daughter, Myrtle, was born. Zimmerman left home and was gone several months. His father advertised for him and offered a small reward, and thus located him in Colorado and brought him home, but ap-pellee says she was in communication with him. In 1912 he went to Florida, where his wife and daughter later joined him. He worked as bookkeeper for one corporation for seven years, and as manager of another for three years, and then became manager of a business of Fugazzi Bros, in Tampa. The wife and daughter and several neighbors testify to his character as a dutiful and affectionate husband and father. Several men say, without contradiction, that he went to and gave mixed parties without his wife, saying that she was not good company and nagged him, and two testify that he had said he was going to buy her a one way ticket back to Missouri. It was testified that he frequently had relations with other women. In 1927, Zimmerman with one Potter had a construction contract in North Carolina to carry out which they had bought twenty trucks and owed for them over $53,-000 on title retention contracts; some of the notes being past due and pressing in August. He had bought tires and other supplies from a Jacksonville firm to which he then owed $2,300, and they were pressing him. He had borrowed first $1,000 and then $3,000 from a Mrs. Starke, giving for the latter loan a note signed Fugazzi Bros., per A. H. Zimmerman, manager, though the proceeds of the note did not go to Fu-gazzi Bros, and the note did not appear on their books. She was pressing for payment. Fugazzi Bros.’ books showed that Zimmerman personally owed them $2,262, Potter and Zimmerman $36,561, while a third concern operated by Zimmerman owed $15,561, which sums were afterwards nearly all charged off as losses. There were some bank balances, but all were offset by notes due to the banks. Zimmerman had bought some real estate, an automobile and furniture, but they were unpaid for and after his disappearance not a cent was realized by his family from any source. In July Mr. Charles Fugazzi, who resided elsewhere, had come to Tampa, and Zimmerman was told that Fugazzi was looking into Zimmerman’s affairs. Zimmerman was heard to say: “I know I am through.” He had insurance on his life, including accident indemnities, aggregating $96,000, but none old enough to have much, if any, surrender value. A premium of $870 on his largest policy went into default August 18, 1927, and a premium of $311 on another was to fall due on August 25, 1927. During August Zimmerman was prospecting with one Johns (Fugazzi also having an interest in the results, if any), seeking a kind of sand in the bed of Indian river. He and Johns waded down it from Melbourne for eight--een miles taking samples, until on Saturday, August 20, they had reached a point opposite San Sebastian Inlet. This is one of several inlets which connect Indian river, a long sheet of still water, with the Atlantic Ocean. Having finished their prospecting he and Johns went to Jacksonville
To this evidence there was added, over objection that-it was irrelevant and not sufficiently connected with the transaction under investigation, the testimony of several witnesses that in the summer of 1928 across Indian river in San Sebastian Inlet, rather nearer the ocean than the river, the thigh bone of a human had been found sticking in a sandbar, the end of it mossy and green and covered with barnacles. No one undertook to say how long it had probably been in the water. It was supposed at the time to be a bone from an aeronaut who at some unstated date had fallen into the ocean near the inlet. The finders did not know of Zimmerman’s disappearance. If this was a bone of Zimmerman, it, of course, established his death. The argument is that his corpse might have floated and been blown by the wind or drawn by a current across the river three or four miles to trm inlet, or a shark may have carried it there. It is equally true that it may be only a relic of the many victims of the Atlantic for any number of years back. Only one bone was found. It was three or four miles from the place of disappearance. There was no particular wind or current during the critical period, and the floating body had been watched for. Such sharks as are in the river have never been known to attack a man. There is only a remote possibility and no probability that this bone was Zimmerman’s. In cases of circumstantial evidence necessarily there must be great liberality and a large discretion in the range of the circumstances allowed to be proven. Yet there is a limit, and particular care ought to be exercised touching a circumstance which may control the verdict. It will be noted that this bone was found neither at the place nor at the time of the occurrence on trial, but three miles away and a year afterwards. There is nothing yvhatever to identify the bone as Zimmerman’s, or to show that it is more probably his than any one whose body has been lost in the river or the neighboring ocean for many years past. A jury may not under sanction of the court be invited to guess that it might be Zimmerman’s. The evidence ought to have been excluded.
Does the remaining evidence authorize a finding that Zimmerman is dead rather than a runaway ? The policies lapsed shortly after August 24, 1927, and a death before their lapse must be established. Not quite seven years of disappearance had gone by at the time of the trial, so that no presumption of law had arisen concerning death, but if it had the presumption would not be of death at any particular date within the seven years. If death must be established at a definite date before the expiration of the seven years, something besides the presumption is necessary. Davie v. Briggs, 97 U. S. 628, 24 L. Ed. 1086; United States v. Hayman (C. C. A.) 62 F.(2d) 118. The question here is whether Zimmerman was drowned on August 24, 1927, for there is nothing to show that he died by any other means or on any other date. The jury, though finding he was dead, declined to find that the death was accidental. The verdict seems to imply suicide; but in our opinion the evidence does not show that he was dead at all at the expiration of the insurance. None of the uncontradicted and unimpeached testimony which is reasonably credible can'be arbitrarily rejected, but all must be construed together. Pennsylvania R. Co. v. Chamberlain, 288 U. S. 333, 53 S. Ct. 391, 77 L. Ed. 819; Arnall Mills v. Smallwood (C. C. A.) 68 F.(2d) 57. We must therefore conclude that while Zimmerman was indulgent and affectionate to his wife and daughter, he also indulged a taste for other women, and was on intimate terms at least with Annie, who had an automobile, and, like himself, disappeared. He had left wife and daughter once before, though he had in late years been active and diligent in business and had held steady employments. It is also true that in 1927 he was headed for financial disaster, and it was imminent, and some of his transactions, especially his borrowing $3,000 on a note signed in the name oí Fugazzi Bros., who did not receive the money, seemed likely to embarrass him greatly. He d,oes not therefore stand as one of blameless domestic, civic, and business character who would have every reason to disclose his whereabouts and return to his associates if living, and whose, disappearance therefore could only with the greatest difficulty be explained as volun
The judgments are reversed, and the causes remanded for further proceedings not inconsistent with this opinion.