FOX v. ORDER OF UNITED COMMERCIAL TRAVELERS OF AMERICA, etc., 192 F.2d 844

HOLMES, Circuit Judge. This action was brought by appellant, the wife of insured, against appellee, a fraternal benefit society, upon a certificate of insurance on the life of her husband, who came to his death from a gun-shot wound while he was sitting in a chair in the living room of their home. At his feet were the gun, tackle box, and a fishing lure with four hooks on it, which he had assembled in preparation for a fishing trip. It was on the morning of June 9, 1950 between 5:30 and 6:00 o’clock, that the insured came to his death.

He and his wife had spent the night at their home, and the night before had planned to go fishing. All the doors inside the house were open, and the parties, though in adjoining rooms, were in constant conversation until a minute or two before the shot was fired. As appellant was walking through the bed room, in the direction of the living room, she heard a shot, at the sound of which she made a lunge to get into the living room, which was not more than three feet away. As she did, the puppy ran out of the living room and hit her feet.

She caught the door to keep from falling, and went right on into the living room. Her husband, still alive, was sitting in a chair; the two fishing rods were lying against the window, and one of the reels was off the rod on the table by the insured’s chair. Later the insured was removed to a hospital, where he was seen by a physician. Appellant went to the hospital to which insured was removed, and about thirty-five minutes later he died. Nothing was said by him from the time of the shot until he died.

The question presented on this appeal is whether the trial court erred in setting aside the jury’s verdict and entering judgment for appellee, notwithstanding the verdict. This depends upon the proper

interpretation of the provision limiting liability of the insurer to $500 if the death of a member results from the accidental discharge of a firearm where there is no eyewitness to the discharge except the member himself. A literal

interpretation of this provision might lead to absurd results. A person might be in the same room with an insured without noticing what he was doing and without seeing the discharge of the gun, or might be asleep in the same room and awakened by the report of a pistol. A witness may testify to what he hears, feels, tastes, and smells, as well as to what he sees, and regardless of whether he sees anything. Ordinarily one hears but does not see the discharge of a gun, especially if smokeless powder is used or if the muzzle of the gun is in close contact with an object. The meaning of the term eyewitness, therefore, has been given a liberal

interpretation by the courts. It includes any competent witness who was present at the scene of the accident at the time of its occurrence. In Ellis, Adm’r v. Interstate Business Men’s Accident Ass’n, 183 Iowa 1279, 168 N.W. 212, L.

L.R.A.1918F, 414, syllabus 4 is as follows: “The wife of one killed by the accidental discharge of a gun lying on the shelf of a garage in which he was at work is an eyewitness of the accident within the meaning of a clause in an accident insurance policy, where he left the house attired for work on his car, to go to the garage and returned within three or four minutes seeking help, and stating that he had been hurt.” The appellant and her husband had slept together in their home. They had arisen early to go fishing, and he was assembling his gun and fishing tackle.

She heard the shot, and sprang to his assistance through the open door three feet away. She was with him when he died at the hospital on the same day. She was a competent witness to the discharge of the gun, to the circumstances surrounding him at that time, and to the operating cause of his death. If one hears a gun fire and sees the wounded man fall, the former is an eyewitness to the discharge, though no fire, smoke, or bullet, was seen to issue from the gun. We conclude that the appellant was an eyewitness to the discharge of the gun within the meaning of the policy provision. Wertheimer v.

Travelers’ Protective Ass’n, 10 Cir., 64 F.2d 435; Wigginton v. Order of United Commercial Travelers, 7 Cir., 126 F.2d 659; Wild v. Sovereign Camp W.O.W., La.App., 149 So. 906, 907; Villemarette v. Sovereign Camp W.O.W., La.App., 178 So. 648, 651; Anderson v. Commonwealth, 291 Ky. 727, 166 S.W.2d 30, 36. We have considered the case of Werner v. Travelers’ Protective Ass’n, 5 Cir., 37 F.2d 96, and think there is sufficient factual difference between that case and this one to distinguish them.

The judgment appealed from is reversed, and the cause remanded to the district court with directions to reinstate the verdict and enter judgment in accordance therewith. Reversed.