3. Insurance 529-Insured's death in en counter held not accidental, within double benefit provision of life policy. Where insured, after his demand that G. sign written confession of improper relations with insured's wife was refused, shot G., and was then shot and killed by G., held, that death was not accidental, within life policy entitling beneficiary to double benefit in case of accidental death. In Error to the District Court of the United States for the Northern District of Texas; James C. Wilson, Judge. Action by Leta D. Holcomb against the Occidental Life Insurance Company. Judgment for plaintiff, and defendant brings error. Reversed and remanded, with directions. W. M. Bates, F. H. Lowrance, and C. H. Read, all of Dallas, Tex., for plaintiff in error. W. P. McLean, Jr., of Fort Worth, Tex. (McLean, Scott & Sayers, of Fort Worth, Tex., on the brief), for defendant in error. Before WALKER, BRYAN, and FOSTER, Circuit Judges. FOSTER, Circuit Judge. This is a suit on a policy of life insurance. It was filed originally in the Forty-Ninth judicial district court of Tarrant county, Tex., and removed to the District Court. The policy provided for indemnity of $2,500 for death from ordinary causes, and a rider was attached giving double benefit in case of death by accident. Prior to the bringing of suit, defendant had tendered the face of the policy, less $18.80, a balance due on account of premiums, and after removal that amount ($2,481.20) was deposited in the registry of the District Court. At the trial the jury was waived by stipulation, and the case submitted on an agreed statement of facts. Judgment was entered for the double benefit, less the balance due, with interest, for a penalty of 12 per cent. on the amount not tendered, and for $500 attorney's fees, under the Texas law, a total of $5,781.20. The material part of the provision of the policy for double indemnity is as follows: "That if the insured, while this policy is maintained in force by the payment of cash premiums, shall sustain personal bodily injury (excluding those received while engaged in military or naval service, whether as a volunteer or otherwise, or aeronautics, or suicide, or self-destruction, or any attempt thereat while sane or insane) which is effected by the happening of a purely accidental event, and which solely and inde pendently of all other causes results in the death of the insured within 90 days thereafter, the company will pay the beneficiary, or beneficiaries, upon surrender of this policy and this supplemental agreement, double the face of the policy, making the total amount payable $5,000." The salient facts shown by the stipulation are these: Holcomb, the insured, resided in Fort Worth, Tex., with his wife. He became suspicious of her relations with one Green, employed as a delivery man by a laundry. On a certain day Holcomb met Green at his residence, while he was delivering laundry. Holcomb cursed and abused Green, and told him if he caught him there any more he On April 7, 1924, a few would kill him. days later, Mrs. Hooks, a sister of Mrs. Holcomb, had a conversation with Green by telephone, and asked him to meet her at Lowe's Pharmacy in the city of Fort Worth at 3 o'clock the same afternoon. Holcomb conversation, and knew that she was to meet was present when she had the telephone Green at the place appointed. That morning Holcomb had become enraged with his wife, choked her, and compelled her to sign a statement to the effect that she had had improper relations with Green. 2:30 p. m. and went behind a partition in the Holcomb went to the pharmacy at about rear. Mrs. Hooks arrived about 2:45 at the pharmacy. Green came shortly after, but they were not acquainted; so did not meet. Green passed through the store and went back to where Holcomb was waiting. Holcomb immediately charged him with improper conduct with Mrs. Holcomb, prepared a written confession of guilt and an agreement to leave the city, and demanded of Green that he sign it. Green denied any improper relations with Mrs. Holcomb and refused to sign the statement. Immediately thereafter Holcomb drew his pistol and fired several shots into Green's body mortally wounding him. Green then drew his pistol and shot Holcomb, killing him instantly. Green died several hours later. Defendant in error insists that under the facts above stated Holcomb's death must be considered accidental, and the beneficiary, his widow, entitled to be paid double benefit under the policy. In support of this contention reliance is had on the case of Lovelace v. Travelers' Protective Ass'n (decided by the Supreme Court of Missouri) 126 Mo. 104, 28 S. W. 877, 30 L. R. A. 209, 47 Am. St. Rep. 638, and the case of Hutcherson v. Sovereign 10 F.(2d) 127 Camp, W. O. W. (decided by the Supreme Court of Texas) 112 Tex. 551, 251 S. W. 491, 28 A. L. R. 823. Without stopping to detail the facts in those two cases, and without expressing any opinion as to the correctness of the conclusions reached, it is sufficient to say they are easily distinguished from the case at bar. The terms of the policies were essentially different, and on the facts disclosed, although the insured in each case was the aggressor in an encounter in which he was killed, death was a somewhat remote possibility when the affair started. [1,2] It may be conceded that under certain circumstances an unlawful killing of the insured by another is to be considered accidental. The rule as laid down by the weight of authority, and of which the decisions quoted below are illustrative, may be stated as follows: 1. Pleading 245(3)-Trial amendment of petition, in action on written guaranty of value of corporate stock, held properly permitted. In action on written guaranty of value of corporate stock, claimed to be worthless, trial amendment of petition to include tender of the stock held properly allowed. 2. Pleading 236(1)—Process 162-Fed eral courts exercise broad discretion in allow. ing amendments. cess. Federal courts exercise a broad discretion 3. Trial 388 (2)-Making special findings of fact and of law discretionary with court trying case without jury. Making special findings of fact and of law is discretionary with court trying case without jury, pursuant to stipulation. 4. Appeal and error 850(2)-Whole case, both on facts and law, held before appellate court. Where the insured is innocent of aggression or wrongdoing, and is killed in an encounter with another, his death is considered accidental, within the meaning of the usual accident policy. Interstate Business Men's Ass'n v. Lester, 257 F. 225, 168 C. C. A. 309. And even where the insured is the aggressor, if he could not reasonably anticipate bodily injury resulting in death to himself at the in allowing amendments of pleadings or prohands of another, the beneficiary may recover. Employers' Indemnity Co. v. Grant (C. C. A.) 271 F. 136, 20 A. L. R. 1118. But where the insured is the aggressor, and knew, or should have anticipated, that the other might kill him in the encounter, the death is not to be considered accidental. Taliaferro v. Travelers' Protective Ass'n, 80 F. 368, 25 C. C. A. 494. [3] In this case the meeting of the two men was not accidental, so far as Holcomb was concerned, and it is apparent that any man of ordinary intelligence ought to have reasonably anticipated that Green would of fer armed resistance. He had been threatened with death by Holcomb in the event of again visiting the latter's home, and had had ample time to arm himself. When Holcomb demanded that he confess to illicit relations with Mrs. Holcomb, he denied such relations, and refused to sign the written confession tendered him; thus proving himself a man of courage and determination. No one could have thought that such a man would supinely submit to being shot down, and Holcomb must have known that there was a strong probability of his suffering bodily injury at the hands of Green, when he attacked him. The facts in this case take it out of the general rule that injury at the hands of another is presumed to be accidental, and bring it Where appellant, in case tried before court without jury, made motion both for findings of fact and of law and for judgment, which was denied, held whole case was before appellate court, both on facts and law. 5. Corporations 120-Written guaranty of value of corporate stock held absolute obligation to make good the stated value. Written guaranty, "This stock represents an investment of $5,000 in 1909, which we guarantee to be realized out of this stock before," maturity of notes given for land purchased by guarantors, indorsed on stock certificates accepted as part of the purchase price, held not in nature of option or agreement to repurchase, if stock was tendered before maturity of notes, but an absolute obligation to make good the stated value. 6. Appeal and error 1050(1)—Admission of evidence of statements before execution of guaranty held harmless. Error, if any, in admitting proof of statements made before execution of written guaranty sued upon held harmless, where such statements did not tend to alter or vary the writing. In Error to the District Court of the United States for the Northern District of Texas; James C. Wilson, Judge. Action by F. D. Thompson against John R. Griffin. Judgment for plaintiff, and defendant brings error. Affirmed. E. B. Robertson and Ike A. Wynn, both of Fort Worth, Tex. (Brasted & Griffin, and Wynn & Robertson, all of Fort Worth, Tex., on the brief), for plaintiff in error. Morgan Bryan and B. L. Agerton, both of Fort Worth, Tex. (Bryan, Stone, Wade & Agerton, of Fort Worth, Tex., on the brief), ulation waived the jury, and the case was heard before the judge. Objections were made by defendant to the introduction of certain evidence, which objections were overruled and exceptions duly noted. After the evidence was heard, plaintiff, on suggestion of the court, filed an amended petition which made no material change in the allegations of the original bill except that the stock was tendered. Defendant excepted to the allowance of this trial amendment, demurred to it, and moved to strike it out. At the close of the case, defendant requested the court to make certain findings of facts and certain findings of law, concluding for defendant in error. Before WALKER, BRYAN, and FOS- with a prayer for judgment. The court deTER, Circuit Judges. FOSTER, Circuit Judge. This was a suit filed in the District Court on August 24, 1923, to recover $10,000 on a written guaranty as to the value of certain stock in a corporation. The parties will be hereafter referred to as they appeared in the District Court. The case is well stated by the petition, the material allegations of which, omitting the jurisdictional averments, are these: On January 1, 1913, plaintiff sold a certain ranch in Mitchell county, Tex., to defendant, John R. Griffin, and one R. H. Foster, for $70,000, the purchasers assuming an indebtedness to the state of Texas of $3,200. No cash was paid. Defendants executed notes aggregating $60,000, due on or before January 1, 1923, and for the balance transferred to plaintiff two certificates of stock in the American-Mexico Land & Cattle Company, of Itasca, Tex., each for 2,500 shares of the par value of $1, which Green and Foster stated represented an investment of $10,000, which was the fair and reasonable value of the said stock. As to the stock, they indorsed on the back of each certificate the following guaranty: "This stock represents an investment of $5,000 in 1909, which we guarantee to be realized out of this stock before the notes given on the Mitchell county land mature. "[Signed] John R. Griffin. "[Signed] R. H. Foster." The stock proved worthless, and nothing was ever realized on it. Foster is dead, and his estate notoriously insolvent; hence, he was not made a party to the suit. Defendant interposed a general demurrer, and filed answer generally denying the allegations of the petition. The demurrer was overruled, and at the trial the parties by stip clined to make special findings of either fact or law, overruling the motion for judgment, and entered judgment for plaintiff as prayed for. [1,2] Error is assigned to the overruling of the demurrers to the original and amended petitions and to the overruling of the motion. to strike out the amended petition. The de murrers and motion to strike were without merit and were properly overruled. With regard to the allowance of the trial amendment, it is sufficient to say that the courts of the United States exercise broad discretion in allowing amendments of pleadings or process where they have jurisdiction over the case. Gagnon v. U. S., 193 U. S. 451, 24 S. Ct. 510, 48 L. Ed. 745. In this case the court undoubtedly had jurisdiction, and to allow the amendment was proper. [3, 4] Error is also assigned to the refusal of the court to make special findings of fact and of law. This was within the discretion of the court and not error, but, as a motion for judgment was made by the defendant, the whole case is properly before us on the facts and the law. Bank of Waterproof v. Fidelity & Deposit Co. (C. C. A.) 299 F. 478. [5] It is the contention of defendant that the guaranty given was in the nature of an option, and the only obligation on defendant was to repurchase the stock at the price of $10,000, provided it was tendered before the maturity of the notes. Cases are cited to support this theory, but they are not in point as applied to the facts in this case, and the theory itself is untenable. The guaranty was an absolute obligation to make good to plaintiff the value given to the stock by defendant when it was accepted by plaintiff in part payment for the land. From a simple reading of the guaranty this is apparent, and citation of authority is not necessary to sus 10 F.(2d) 129 tain that conclusion. There was ample evi- We find no error in the record. WILKENS et al. v. TRAFIKAKTIEBOLAGET GRANGESBERG OKELOSUND. (Circuit Court of Appeals, Fifth Circuit. December 31, 1925.) No. 4650. I. Shipping 50-Charterers held required to pay only port charges enumerated in charter party. Where a charter party in one clause bound owner to pay all port charges and pilotage, and in a subsequent clause bound charterers, in consideration of certain payment by owner, "to pay port charges at loading ports on outward cargo, viz. tonnage dues, customhouse fees, levee dues, quarantine fees, cost of fumigating, wharfage, watching, and outward pilotage," held, charterers under latter clause were liable only for port charges enumerated. 2. Shipping 50-Charterers held not liable to owner for item of pilotage from one dock to another. Charterers held not liable under charter party to owner for item of pilotage from one dock to another, necessary only for purpose of bunkering. 3. Shipping 50-"Wharfage," one of port charges which charterers agreed to pay, held to include "shed hire." "Wharfage," one of the port charges which charterers agreed to pay, held to include "shed hire," which amounted only to a charge for storing cargo. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Wharfage.] 4. Shipping 50-Reference to customs In clause as to loading and discharging held not to apply to remainder of charter. In charter clause allowing charterers certain number of days for loading, the phrase 10 F. (2d)-9 "customs and usages at the ports of loading and discharging to be observed, unless otherwise expressed," held to refer to customs and usages as to allowance of Sundays, holidays, and bad weather days, etc., and not to refer to other clauses of the contract. 5. Shipping 50-Charge must be lien on vessel to constitute a "port charge." A charge must be a lien on a ship, either maritime or statutory, which vessel must pay before she is entitled to leave port, to constitute a "port charge." [Ed. Note.-For other definitions, see Words and Phrases, Port Charges.] 8. Shipping 50-Charge for inspection of cotton before loading held not a "port charge." Charge for inspection of cotton before loading by maritime committee or maritime branch of Cotton Exchange, not being a lien on ship, held not a "port charge," payable by owner under charter party obligating owner to pay port charges. 9. Shipping 50-Outward pilotage clause held to cover charge of pilotage from Houston to Port Bolivar. Under charter party clause, obligating charterers to pay outward pilotage, charterers were required to pay charge for pilotage from Houston, the place of partial loading, as far as Port Bolivar, since, if vessel had proceeded directly from Houston to sea, it would have passed through Port Bolivar. 10. Shipping 50-"Extra port charge" clause held to cover charge of pilotage from Port Bolivar to Galveston pier. Where charter party contemplated partial loading at Houston, and completing loading at Galveston, under clause obligating charterers to pay "all extra port charges incurred at second port," charterers were required to pay pilotage charge from Port Bolivar to the pier at Galveston as an "extra port charge"; 'it being in addition to charges that would not have been incurred if the vessel had not stopped at Galveston to take on remainder of cargo. Appeal from the District Court of the United States for the Southern District of Texas; Joseph C. Hutcheson, Jr., Judge. Libel in personam by the Trafikaktiebolaget Grangesberg Okelosund against R. B. Wilkens and Carl C. Biehl, composing the partnership of Wilkens & Biehl. From a decree for libelant (4 F. [2d] 577), respondents appeal. Decree modified, and, as modified, affirmed. John Neethe, of Galveston, Tex. (Williams, Neethe & Williams, of Galveston, Tex., on the brief), for appellants. J. Newton Rayzor, of Houston, Tex., and H. C. Hughes, of Galveston, Tex. (Lockhart, Before WALKER, BRYAN, and FOS- BRYAN, Circuit Judge. This is a libel in personam by the owner of the Swedish steamship Laponia, to recover the sum total of certain deductions made by the shippers of a cargo of cotton in an accounting under a contract of affreightment. The defense is that the deductions were authorized by the contract, or charter party, as it is designated by the parties. The provisions of that instrument, material to the controversy, are: "(1) That the said steamer [Laponia] shall proceed to Houston and/or Galveston (including Texas City and Port Bolivar), and there shall load from the said charterers or their agents, at such wharf or dock as they may direct, and if afterwards required by them to shift from one terminal to another at any port more than once, they to pay the ordinary expenses of towing, a full and complete cargo of lawful merchandise, and, having arrived at the port or ports of discharge as ordered, "(20) Owners to pay charterers 2s. per net register ton, in consideration of which charterers agree to pay port charges at loading ports on outward cargo, viz. tonnage dues, customhouse fees, levee dues, quarantine fees, and cost of fumigating, wharfage, watching, and outward pilotage." The steamer was required by the charterers to report at Houston, was there partially loaded, and then proceeded to Galveston, where the cargo was completed. At Houston the steamer was required by the charterers to shift from wharf No. 8 to Anderson's dock for cargo, and that was the only shift made at the instance of the charterers. A second shift, for the purpose of obtaining bunkerage, was made to the Sinclair dock, and from there the steamer proceeded in charge of a pilot by way of Port Bolivar to pier No. 38 at Galveston. According to custom and usage at the port of Houston, charges are made against vessels for "shed hire" and "dockage," and these charges are separate and distinct from a charge for wharfage. "Shed hire" is a term used to designate a charge for a shed berth in which to assemble cargo. For this purpose a uniform flat rate of $50 is charged, regardless of the size of cargo. "Dockage" is a charge assessed for the number of days a ship is at the wharf, and the rate is one-half cent per gross registered ton per day for each and every day a vessel remains at the dock. Shed hire and dockage are also charged at the port of Galveston, but the rates are higher; that for shed hire being $150, and that for dockage 22 cents per ton per day. At each port, also, the maritime committee or marine branch of a Cotton Exchange inspects cotton prior to its being loaded upon vessels, for the purpose of ascertaining the sizes of the bales, the nature of the wrapping, "and any other detail in which the bale may not be a proper package," and for this inspection assesses a fee of one cent per bale on square bales, and “(4) All ordinary disbursements at port one-half cent per bale on round bales. "(2) Charterers are to pay for loading cargo, and compressing cotton, at loading port, but no other charges, and the stevedore to be appointed by them, who is to load the steamer under the captain's direction. "(3) Charterers to have the option of loading at any two of the above ports, they paying all extra port charges incurred at second port, and time used in shifting ports to count as lay days," etc. |
