Aetna Life Insurance Co. v. Little
| Decision Date | 08 November 1920 |
| Docket Number | 234 |
| Citation | 225 S.W. 298,146 Ark. 70 |
| Parties | AETNA LIFE INSURANCE COMPANY v. LITTLE |
| Court | Arkansas Supreme Court |
Appeal from Sebastian Circuit Court, Fort Smith District; John Brizzolara, Judge; affirmed.
Judgment affirmed.
James B. McDonough, for appellant.
1. The facts proved do not show that the death of Judge Little was caused by the means provided for or covered by the policy and the court erred in directing a verdict, as a case for a jury was made by the testimony. 92 Ark. 378; 76 Id 520; 105 Id. 213; 112 Id. 507; 102 Id. 460; 71 Id. 445; 119 Id. 589; 210 S.W. 350; 120 Ark. 43; 98 Id. 370.
2. Under all the facts of this case, a jury had a right to find that deceased was violating the law of the State in attempting to make an entry into his house, and the evidence is sufficient to sustain such a finding, and the court erred in its instructions given and refused. 214 S.W. 456; 174 N.W 577; 101 S.E. 134; 179 P. 913; 187 Id. 1070. See, also, 185 P. 1085; 257 F. 225; 177 N.Y.S. 68; 60 Ark. 588.
3. A directed verdict should have been given for defendant. 108 N.E. 296; 80 F. 368; 68 Id. 825; 104 Ind. 133; 60 S.W. 570; 81 A. 207; 143 F. 271.
The court erred in refusing the instructions asked by defendant. If deceased went to Williams' house for an unlawful purpose, he was not covered by the accident policy. 257 F. 225; 108 N.E. 296; 73 Ark. 274; 1 Cyc. 248; 143 F. 271. See, also, 65 So. 852; 177 N.Y.S. 68; 101 S.E. 134; 174 N.W. 577; 120 Mass. 550; 169 U.S. 139; 76 N.W. 683.
4. Instruction No. 3 for defendant should have been given, as well as No. 4. Cases supra.
5. It was error to allow the penalty and attorney's fee under the facts of this case.
6. A case for a jury was made. 113 Ark. 174; 81 Id. 87; 99 Id. 490; 102 Id. 460; 127 Id. 286; 107 Id. 158; 118 Id. 432; 128 Id. 347; 222 S.W. 1067; 221 Id. 858; 222 Id. 51.
7. If the death was due to an agency of the deceased, it did not result from accidental means. The cases cited for appellee do not apply. See cases supra and 34 S.E. 113; 143 F. 271; 107 Iowa 538; 46 F. 446; 80 F. 368; 169 Cal. 800; 158 P. 1022.
Pryor & Miles, for appellee.
If true that Judge Little went to the window of the house and it was a negligent act, yet the insurance company can not plead his negligence in this case. 102 Penn. St. 230. The cases cited by appellant have no application here, and many of them support the contention of appellee. 1 Am. Rep. 157; 161 Mass. 149; 23 Q. B. Div. 453; 127 U.S. 661; 54 Am. Rep. 298. There is nothing to show that Judge Little voluntarily assumed the risk of death. The court properly directed a verdict. 92 Wis. 83; 89 Cal. 101; 93 N.W. 361. If his act was involuntary and unintentional it was an accident. 62 N.W. 807; 28 L. R. A. 78; 38 Am. St. 408; 110 Iowa 224; 81 N.W. 484; 39 F. 321; 57 S.W. 614; 85 F. 401; 131 Ark. 419. There was no issue to submit to a jury (supra), and no error in the instructions.
This is a suit brought by the appellee, the widow of Judge Paul Little, to recover on an accident policy insuring the deceased "against loss from bodily injuries effected solely through external, violent and accidental means, suicide (sane or insane) not included." Judge Little was shot and killed, and it is the insistence of the appellant that the killing resulted from conduct on the part of Judge Little which, if not wrongful in fact, appeared to be unlawful to the party who killed him, and that the death was not, therefore, due to accidental means.
The facts in connection with the killing, as shown by the testimony in the case, are substantially as follows: The killing occurred at the residence of Guy Williams on Alabama Avenue in the city of Fort Smith, Arkansas, on the night of October 29, 1919. The witnesses vary slightly in their statements as to the hour, but all place it around 9:30 p. m. Williams and his wife had retired for the night, and had extinguished the lights only a few minutes before the killing occurred. About ten minutes after the lights were turned out Judge Little went to the Williams home and, seeing it dark, walked around to the bedroom window and knocked at the window or rattled it, when Williams fired a shotgun through the window and killed Judge Little.
The argument is made that, if Judge Little had wanted to speak to Williams, he could have called him over the telephone, as there were 'phones in both homes, and that if he desired a personal conversation he should have approached the Williams home in the usual way and should have announced his presence by ringing the doorbell, and that, failing in this, he caused Williams to believe that some one was attempting to enter the home with an unlawful or wrongful purpose, and that Williams knew that person to be Judge Little. There was no testimony to show, however, that Judge Little made any effort to enter the home. His acts there were directed to attracting the attention of the occupants of the house, and in this he succeeded, as is evidenced by the consequence of having his presence discovered.
If Judge Little had any improper motive in visiting the Williams home, only two theories can be advanced in explanation. One is that he was about to commit burglary; the other that he sought an assignation. That he entertained either purpose appears to be without any substantial testimony to support it. Judge Little had served the judicial district in which he resided for two terms as its prosecuting attorney, and, at the time of his death, was in the middle of his second term as the judge of that circuit. That he sought an assignation with Mrs. Williams appears as improbable as that he intended to commit burglary. The undisputed testimony is to the effect that he and Williams were brothers-in-law; that Williams was the official stenographer of that district, and, that, as Mrs. Little expressed it, they were "like one big family." The relationship was close and intimate. It does appear that a few days before the killing Williams bought the gun with which he killed Judge Little, but there is no intimation that there had ever been the slightest ill-will or friction between them. There is no intimation that the name of Judge Little had ever been coupled with that of Mrs. Williams in any improper way.
The testimony does show that when Williams first came to the door, and while he still had his gun in his hand, he called out, "What are you doing here?" or words to that effect, and that he did not go to the man who had been shot. But it will be remembered that the killing occurred at night, and late in October. The injured man was lying outside of the house, and on the ground, and Williams was in his pajamas. It appears that an ambulance was promptly called by the neighbors who heard the shooting and came at once to the scene of the killing, and Judge Little was carried to the hospital. There is no intimation that any scene occurred between Williams and his wife, and both were at the hospital within half an hour after Judge Little arrived there.
It is strongly insisted that the testimony of one Frank Hines shows that the killing was not accidental, but was intentional. This witness testified that he lived about a block and a half from the Williams home, and that he was sitting on his front porch when the shot was fired; that he called Williams on the 'phone and asked what the trouble was, and that Williams said he had shot Judge Little. Asked how long that was after the shot he answered, "It must have been five minutes." The witness further testified that he went over to the Williams home, and got there just as the ambulance was leaving, and that Williams and his wife left for the hospital in four or five minutes after he got there.
We do not think this testimony, considered in the light of all the other testimony, would legally support the inference that Williams knew, when he fired the fatal shot, that he was shooting at Judge Little. It is undisputed that several neighbors reached the scene of the killing before Hines did, and that these first arrivals advised Williams whom he had shot, and that Williams thereafter dressed to leave home, and that he was dressed when Hines arrived there, and that these first arrivals, after discovering what had happened, telephoned for the ambulance, and that an interval of from five to fifteen minutes elapsed before the ambulance came. Williams was not called as a witness at the trial, it being shown that he was in Texas at that time.
We have stated the salient facts and circumstances which might be said to support the view that Williams killed Judge Little purposely. Other circumstances are mentioned in the briefs, but we do not think they are of sufficient evidentiary value to warrant discussion.
The court directed a verdict in favor of appellee, and that action is assigned as error, the insistence being that a case was made for the jury.
This court has had frequent occasion to define the words "accidental injury" and "accidental death." In the case of Standard Life & Accident Ins Co. v. Schmaltz, 66 Ark. 588, 53 S.W. 49, the court approved an instruction given by the trial court, in a suit on an accident policy, "that the...
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