No. 739 | 5th Cir. | Feb 28, 1899
(after stating the facts as above). At the close of the testimony defendant’s counsel moved the court to instruct the jury peremptorily to find a verdict for the defendant on the grounds following:
“First, that the proofs of death were not furnished to the company in accordance with the requirements of the policy, and wore not such proofs as were required; second, that the judgment of the court herein on the exceptions acts as res judicata to the effect that these proofs were not sufficient; third, on the ground that it has not been affirmatively or positively shown that the death of J. W. Barker was the result of an accident.”
The only assignment of errors brought up in the record is the following:
“The lower court erred In refusing the motion made by defendant, at the close of the testimony, to direct a verdict for the defendant, and refusing such verdict, as fully shown by the reasons and statements contained in bill of exceptions No. 1; and erred in refusing to admit the testimony regarding the citizenship, as shown by the statements contained In bill of exceptions*160 No. 2, — which bills of exceptions Nos. 1 and 2 are, by reference, made'a part .of this assignment of errors, as if repeated and copied in 'full.”
The first question raised by the assignment of errors, under bill of exceptions No.' 1, is in reference to furnishing proofs of death to the company in accordance with the requirements of the policy. A careful inspection of the record shows that said proofs were sent and received by the company long before the time had expired in which they should be sent under the terms of the policy. Said proofs consisted of a sworn statement of John G-. Sanford, detailing the circumstances under which he found the body of the deceased; the affidavits of the clergyman and the undertaker who officiated at the funeral that they identified the body as that of J. W. Barker; the formal questions and answers propounded to the beneficiary, Harriet Barker, also sworn to; the. certificate of the board of health for the parish of Orleans, describing the deceased, stating cause of death to be exposure; and the certificate of Dr. Fenner, assistant coroner, and the certificate of coroner, as to death from exposure. It would be difficult to see how more thorough and satisfactory proofs of death could have been furnished than the above, under the circumstances. ^
We do not lose sight of the contention of the company, as expressed in its letters, at the trial, and brought up here as one of the principal grounds of defense, that the company must be furnished with direct and positive proof that death resulted proximately and solely from accidental causes. It is admitted that no one witnessed the death of the insured, but there are other evidences than the testimony of eyewitnesses that can properly be considered, and, if the jury find them satisfactory and convincing, they are direct and positive enough to sustain the verdict. The previous good health ' of the deceased, the condition of the body when found, the depth of mud and water in which he died, the difficulty of removing the body from the bog, the position and contents of the boat, and the character and temperature of the weather, were important facts, properly submitted to the jury, to enable them to determine the issues formed in the case. In this case, as in many others, where the body of the insured is found, and no one has witnessed the death, the circumstances and surroundings are the only evidence that can be produced to determine the cause of the death. Such facts must be submitted to the jury for their consideration, and their finding thereon is final. It would have been grave error for the trial judge to have complied with the request of the defendant below and directed a verdict for it.
The record does not disclose the fact that the ruling of the circuit court upon the exceptions to the first petition was res judicata. Said petition was afterwards amended, and there is no plea in the record specially setting up “res judicata” as a defense, according to the practice prescribed in the state of Louisiana. Therefore that defense cannot be urged here. The testimony in reference to the citizenship of the parties litigant was not admissible for the same reason. It was not pleaded, and, according to the practice here, evidence could' not be admitted at the trial