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Solomon v. Benjamin

January 30, 1935

SOLOMON ET AL.
v.
BENJAMIN



Appeal from the District Court of the United States for the Northern District of Illinois, Eastern Division; John P. Barnes, Judge.

Author: Fitzhenry

Before EVANS, SPARKS, and FITZHENRY, Circuit Judges.

FITZHENRY, Circuit Judge.

This is an appeal from a decree of the District Court in favor of appellee on a bill of interpleader filed by the New York Life Insurance Company, under which it paid into the registry of the District Court $9,930.80, the proceeds of two insurance policies on the life of Daniel Hosanna, deceased, there being adverse claimants to the proceeds of the policies.

Appellee, Esther J. Benjamin, claimed the fund by virtue of being the beneficiary named in the two policies. She alleged the insured met his death in a manner unknown to her and that she did not cause or help to cause his death.

Appellants filed separate answers, in which they denied that appellee was entitled to receive the proceeds of the policies because she feloniously caused or assisted in causing the death of the deceased.

Daniel Hosanna, deceased, orphaned in his early infancy, was reared in Persia by his uncle, Samuel Lazar, an appellant. Upon coming of age he immigrated to America, with money furnished by his uncle, and from 1926 to 1932 lived in Chicago with appellee, who claimed to be distantly related to him, and her husband, Joash Benjamin. At the time of his death he was about forty-eight years of age and unmarried. He had four policies of insurance on his life in addition to the two involved in this case. The policies here in suit contain a clause providing that "Double Indemnity" shall be payable where the death results from "bodily injury effected solely through external, violent and accidental means," and shall not be payable where death shall result "from the taking of poison * * * whether voluntarily or otherwise."

As deceased was returning home from work at about 3 o'clock in the morning of Labor Day, 1932, a few weeks before his death, he was assaulted just as he entered the vestibule of the apartment house in which Mrs. Benjamin was living. He was beaten over the head, and when he "woke up" he rang the bell and asked appellee to help him upstairs; she refused to, or to permit her husband to go to his assistance.

On October 19, 1932, deceased took appellee's car to get some dirt for a lady's flowers, and drove to a vacant lot which belonged to him. The lot was located several miles from Mrs. Benjamin's home and was surrounded by shrubbery growing so high that only the top of an automobile could be seen above it. There he was beaten over the head and his skull fractured, and threafter the car was driven over his body. He was found and removed to a hospital, where he died on the following day. Immediately after the murderous assault, a witness saw a man driving rapidly away in appellee's car, which was later abandoned in Oak Park, Ill., and recovered by appellee.

On the trial, appellee made her proof first. When she closed her case, appellants began offering their proof. Late in the afternoon the administrator had offered some documentary evidence, when the record shows the following occurred:

"The court then said: Any further testimony? Counsel for said defendant administrator and said defendant Lazar said: That is all we have here, your Honor (the hour then being about 5:30 P.M.). Counsel for Mrs. Benjamin said: We have closed our case and we ask for a finding. The court then stated: The finding will be in favor of the claimant Esther J. Benjamin. I cannot see anything in this case but a suspicion, and for the life of me I do not see any foundation for the suspicion. * * *"

No objection was made and no exception taken. No further time ws requested in which to procure or produce additional testimony; no offer to prove any facts by any designated witness was made. The trial court had seen all of the witnesses, heard them testify, and while the conclusion of the trial was somewhat summary, the record does not show any right on the part of appellants to complain. No serious question of law is involved.

Appellants assigned as error the refusal of the court to grant a continuance for the trial of the case on February 8, 1934. The motion was addressed entirely to the discretion of the court and asked for the continuance on the ground that the name of the person who administered the fatal blows to the deceased on October 19, 1932, had just been discovered. The original answers to the bill of interpleader were filed in January and March 1933. The cause was continued four or five times and finally was again set for February 6, 1934. The last motion for a continuance was made February 7, 1934.

The affidavit signed by Lazar discloses the fact that on February 4, 1934, information was procured for the first time which strongly and definitely tends to show who beat the deceased over the head on October 19, 1932, from which injuries the insured died, and that it is such that it is believed the murderer of said deceased can be apprehended; that on the next day steps were taken to communicate with and have action taken by the proper law enforcement officers for the apprehension of the murderer. It was further charged that the evidence tends to show that the person who hit deceased over the head on October 19, 1932, is a person in the immediate family of Esther J. Benjamin. The affidavit tends to show that appellants believed if the person referred to were apprehended and tried it would dispose of the issues involved in this case. This case would not be concluded bya conviction, but would still have to be tried upon its own merits, regardless of the outcome of the criminal case. Lillie v. Modern Woodmen of ...


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