Campbell v. Fidelity & Cas. Co. of New York

• Decision Date: 25 January 1901
• Citation: 109 Ky. 661,60 S.W. 492
• Parties: CAMPBELL v. FIDELITY & CASUALTY CO. OF NEW YORK. [1]
• Court: Kentucky Court of Appeals

60 S.W. 492

109 Ky. 661

CAMPBELL v. FIDELITY & CASUALTY CO. OF NEW YORK. ^[1]

Court of Appeals of Kentucky.

January 25, 1901

Appeal from circuit court, Shelby county.

"To be officially reported."

Action by Jennie B. Campbell against the Fidelity & Casualty Company of New York on a policy of accident insurance. Judgment for defendant, and plaintiff appeals. Reversed.

G. G Gilbert, for appellant.

L. C Willis, for appellee.

DU RELLE, J.

Appellee company, in December, 1896, issued to appellant's husband, Willis B. Campbell, who was then a policeman, a policy by which it insured him for the benefit of appellant in the sum of $1,000 "against bodily injuries sustained through external, violent, and accidental means." Clause 5 of the policy is as follows: "This insurance does not cover disappearances; war risks; nor voluntary exposure to unnecessary danger; nor injuries, fatal or otherwise resulting from poison or anything accidentally or otherwise taken, administered, absorbed, or inhaled; nor injuries fatal or otherwise, received while or in consequence of having been under the influence of, or affected by, or resulting, directly or indirectly, from intoxicants anÆsthetics, narcotics, sunstroke, freezing, vertigo, sleep-walking, fits, hernia, or any disease or bodily infirmity." Campbell was shot and instantly killed in November, 1897, by a policeman named Duncan. Under the clause quoted the defense is made: (1) That the shot was not accidental, but intentional, and was fired by Duncan in his necessary self-defense, to save his own life, and to protect himself from death or great bodily injury, and from an assault then being made upon him by Campbell. (2) That Campbell voluntarily exposed himself to unnecessary danger, in that, late at night, in the streets of Shelbyville, when drunk, he did wrongfully, maliciously, willfully, and unnecessarily assault and attempt to kill Duncan, then a policeman on the Shelbyville police force, engaged in the discharge of his duties, armed as and clothed with the authority of a policeman, all of which Campbell then well knew; and that Duncan then, in his necessary self-defense, shot and killed Campbell. (3) That when Campbell was killed he was under the influence of intoxicants. (4) That at the time and place at which Campbell received the injuries of which he died he received such injuries in consequence of, and they were the result, directly and indirectly, of, his being under the influence of and affected by intoxicants. The affirmative averments of the answer were controverted of record, and a trial had, which resulted in a verdict for the company.

It appears that Campbell had been a member of the Shelbyville police force, serving as such for about two years with the man by whom he was killed, and who during that time was a special policeman. A short time before his death he had been removed, and Duncan retained in his place. He had a grievance against the mayor and some of the board of town trustees, who were instrumental in his removal, but, so far as the record shows, was on perfectly friendly terms with Duncan, and early in the evening smoked a cigar with him in an amicable manner. The evidence tends to show that Campbell had a drink of whisky before supper, and after supper, a little after 8 o'clock, left his wife at a neighbor's, and went down town. The evidence also tends to show that between that time and his death he took a drink of whisky at one saloon, a glass of beer at another, and four drinks of whisky at another, three of these being taken in rapid succession. Whether he took anything else does not appear. Just before the shooting-- which took place between half past 10 and a quarter of 11--he drank a glass of ginger ale. As to the extent, if any, to which he was under the influence of liquor, there is the usual conflict. There is evidence tending to show that he was somewhat noisy, one witness stating that he was more disorderly than drunk; that he was once or twice urged to go home; and that just before the killing, after leaving a saloon, he yelled on the street one or more times. For this he was reproved by Duncan. When Duncan for the second time urged him to stop his noise, and go home, referring to the fact that he had been a policeman, Campbell seems to have said it was a "damn lie," that he was not hallooing, and to have knocked Duncan's billy from under his arm. As Duncan stooped to recover it, Campbell rolled it out of reach with his foot. This was done three times. As Duncan stooped the third time, Campbell drew his pistol with his left hand,--the pistol-finger of his right hand having been shot off some time previously,--and presented it at Duncan's head. The pistol, according to some witnesses, "chawed," or made a clicking noise. When Duncan rose up, and saw the pistol at his head, he struck it up, and, at the same time, drew his own revolver and fired. When the doctor reached the spot a few minutes later, he found Campbell quite dead, with the pistol still in his hand, and his finger through the guard and on the trigger.

We shall first consider the objections to the admission and refusal of testimony. The witness Skelton, a saloon keeper into whose place Campbell came on the night of the killing, was asked whether he was drunk or sober, and replied: "I took him for sober. I didn't take time to notice him very particular." The witness was then asked: "Did you discover that he walked and talked like a sober man, or did he stagger, or did he stammer, or have any indications of a drunken man?" Before the objection to this question was passed upon by the court, the witness answered: "Did not. I didn't have much time to pay any attention to him. I think if he had been very drunk I would have discovered it." This answer, against objection, was excluded from the jury. That the question was proper,--if it be not considered leading,--we have very little doubt. In Brown v. Com., 77 Ky. 405, in an opinion which is an object lesson in clear statement, Judge Hines stated the doctrine on the admissibility of opinion evidence of nonprofessional persons as to various mental, moral, and physical conditions,--including intoxication,--and applied it to evidence upon the question of sanity. It was there held that by the expression used in some cases, "the witness must detail the facts upon which the opinion is based." "It is not intended that the admissibility of the evidence shall be made to depend upon the ability of the witness to state specifically facts from which the jury may, independent of the opinion of the witness, draw a conclusion of sanity or insanity, for it is the opinion of the witness that is the subject of the inquiry." It has never been held that such specific facts might not themselves be stated to the jury. On the contrary, Judge Hines, in the opinion quoted, continues: "The ability of the witness to detail certain facts which are in themselves substantive evidence of the condition of the mind may add very greatly to the weight of the opinion given in evidence. ***" But, while the question was proper, the exclusion of the answer was not, under the facts in this case, prejudicial. The witness had already given his opinion as to Campbell's sobriety. The answer which was excluded itself shows he had no sufficient knowledge or opportunity for observation to enable him to give any details upon which the opinion might be based, and he was subsequently permitted to go over practically the same ground covered by the question. The witness Morgan, being asked whether Campbell was or not under the influence of liquor that night, said: "I don't know what you call under the influence. Q. Do you mean to tell the jury that you don't know what is meant by under the influence of liquor? A. When you take one you are under it some, and when you take two, more." After some other inquiries, the question was asked: "Now, tell this jury whether that man was under the influence of liquor that night. If you don't know, give us your judgment." Against objection, the witness was allowed to answer: "He was under the influence some, but I would not call him drunk, judge." Under the opinion in the Brown Case, supra, it was proper to permit the witness to give his opinion, as he had shown that he had ample opportunity for observation of facts upon which to base his opinion.

The instructions given are complained of. They are as follows: "No. 4. If the jury believe from the evidence that Willis B. Campbell, not in his necessary or apparently necessary self-defense, attacked O. D. Duncan with a pistol, a deadly weapon, with the intention of killing him, the said Duncan, or doing him some great bodily harm, and the said Duncan in his (the said Duncan's) necessary or apparently necessary self-defense killed said Campbell, they should find for the defendant." "No. 5. The jury should not exonerate the company on the ground that the decedent, while in consequence of having been under the influence of or affected by the use of intoxicants, nor because such shooting resulted, directly or indirectly, from the use of intoxicants, unless they believe from the evidence that Campbell was so much under the influence of intoxicants as to amount to drunkenness or intoxication." "No. 3. If the jury believe from the evidence that the death of Willis B. Campbell was not the result, directly or indirectly, of intoxication when killed (if he was intoxicated), or the result of his voluntarily exposing himself to unnecessary danger (if he did so expose himself), they should find for plaintiff the sum of one thousand dollars, with interest at 6 per cent. per annum from December 28, 1898."

Before considering the objections to the individual instructions, it seems that we should consider the general...