American Acc. Co. of Louisville v. Carson

• Decision Date: 13 June 1896
• Citation: 36 S.W. 169,99 Ky. 441
• Parties: AMERICAN ACCIDENT CO. OF LOUISVILLE v. CARSON.
• Court: Kentucky Court of Appeals

36 S.W. 169

99 Ky. 441

AMERICAN ACCIDENT CO. OF LOUISVILLE v. CARSON.

Court of Appeals of Kentucky.

June 13, 1896

Appeal from circuit court, Jefferson county.

"To be officially reported."

Action by A. Carson against the American Accident Company of Louisville on a policy of insurance. Judgment for plaintiff and defendant appeals. Reversed.

O'Neal Phelps, Pryor & Silligman and Bullitt & Shields, for appellant.

R. C Warren, M. C. Saufley, W. G. Welch, and D. W. Sanders, for appellee.

HAZELRIGG J.

In April, 1891, the appellant company, in consideration of certain agreements, statements, and warranties made in the application of one Stephen M. Carson, and the sum of $7 issued to him, under division A, wherein Carson's occupation was described as that of a druggist, a policy of insurance known as an "accident policy," by which, for the term of three months, the applicant was insured against bodily injuries, effected through "external, violent, and accidental means"-First, which wholly disabled him; second, such injuries as partially disabled him; third, such as resulted in the loss of an eye; fourth, loss of a hand or foot; and, lastly, loss of both hands or feet, etc., in which event the full principal sum of $5,000 was to be paid to the insured, if he survived, or, if he died, then to his father, A. Carson, the appellee here. In the body of the policy it was provided that, if the insured was injured or killed in any occupation or exposure classed by the company as more hazardous than that recited in the application, the insured or his beneficiary should be entitled only to such sums as are named in the division so classed as more hazardous. And on the back of the policy, among many other conditions under which the policy was issued, we find the following: "This insurance does not cover disappearances; nor suicide, while sane or insane; nor injuries, whether fatal or otherwise, of which there is no visible mark upon the body; nor accidental injuries or death resulting from or caused, directly or indirectly, wholly or in part, by hernia, fits, ***; nor extend to or cover intentional injuries inflicted by the insured or any other person, or injury or death happening while the insured is insane, or under the influence of intoxicating drinks or narcotics," etc. It appears that the insured met his death in May, 1891, and under circumstances to be presently considered. The company denying any liability, the beneficiary, A. Carson, brought this action in the Jefferson circuit court for the principal sum indicated in the policy; and upon peremptory instructions, at the conclusion of the testimony, a verdict was rendered in his favor. From the judgment thereon the company appeals.

After certain preliminary statements, the petition avers that "on the 8th day of May, 1891, and before the said term of insurance had expired, the said Stephen M. Carson was shot through the body by a ball from a gun or pistol, and thereby instantly and intentionally killed, by one Jesse Burton, in the vicinity of Branford, in the county of said Carson's residence, in the state of Florida"; that "the said shooting and killing by the said Jesse Burton was not done in a mutual affray, was not provoked by any misconduct on the part of the said Carson, and was not foreseen by him in time to have been avoided, but was wanton, causeless, unprovoked and unexpected by him." It is evident, and it is so argued, that the pleader's object in setting out the fact that the insured came to his death by a shot fired through his body intentionally by another (thus anticipating the probable defense) was to provoke a demurrer, and thus present fairly to the court for construction the meaning of the words, "nor extend to or cover intentional injuries inflicted by the insured or any other person," found on the back of the policy, and therefore not necessary to be adverted to in declaring on the contract. The expected demurrer was filed and overruled, and thus are presented for our consideration two questions: First, were the "means" producing the death of the insured "external, violent, and accidental"? and, second, was the death of the insured "an intentional injury inflicted by another," within the meaning of the policy? On the first point little need be said. While our preconceived notions of the term "accident" would hardly lead us to speak of the intentional killing of a person as an...