Benefit Ass'n of Ry. Emp. v. Harrison, 40843

• Decision Date: 09 June 1958
• Docket Number: No. 40843,40843
• Citation: 233 Miss. 834,103 So.2d 925
• Parties: BENEFIT ASSOCIATION OF RAILWAY EMPLOYEES, an Illinois Corporation, v. Mrs. A. W. HARRISON, Guardian of Gelene Gipson, a Minor.
• Court: Mississippi Supreme Court

Page 925

103 So.2d 925

233 Miss. 834

BENEFIT ASSOCIATION OF RAILWAY EMPLOYEES, an Illinois Corporation, v. Mrs. A. W. HARRISON, Guardian of Gelene Gipson, a Minor.

No. 40843.

Supreme Court of Mississippi.

June 9, 1958.

Wilbourn, Wilbourn & Lord, Meridian, for appellant.

Roy N. Lee, Forest, for appellee.

HALL, Justice.

The minor plaintiff is a 15 year old daughter of Grady V. Gipson who met his death by reason of a pistol wound on June 17, 1957. He was insured under a policy for a payment of $2,500 in the event of accidental death. The company denied liability under the policy and this suit was instituted resulting in a judgment in favor of the plaintiff for $2,500.

On this appeal it is contended by the appellant that the insured culpably provoked the encounter, or was the aggressor therein, in the course of which he was killed, and that his death was not accidental within the meaning of the policy.

Although the brief for the appellant is divided into three sections, the points raised on this appeal may be consolidated into the one contention just stated and the appellant insists that it was entitled to a peremptory instruction because the asserted defenses were established according to the overwhelming weight of the evidence. With this contention we do not agree.

The proof showed that Mr. Gipson had been sick for 2 or 3 months and was in bed and unable to work. He had an 18 year old son by the name of Leonard Gipson who had attended services at the Prospect Baptist Church on the morning of June 17, and who had had some kind of difficulty or argument with one Marvin Yates at the Church, and according to Leonard's testimony Yates told him to come to his house later. Leonard ate lunch with the father of Marvin Yates about 300 yards away from Marvin's home, and about 1:00 P.M. went to Marvin's home, at which the difficulty seems to have been more violently renewed and resulted in a personal encounter between them. The trouble grew out of the fact that Leonard was trying to make a date with Marvin Yates' daughter, and, according to Leonard, Marvin jumped on him at his home and he went home and told his father about it, and his father got out of bed and dressed and procured a .38 caliber pistol which he placed in the glove compartment of the automobile, and Leonard drove his father to Marvin's home, which was a distance of probably one-quarter to one-half mile. Grady Gipson's wife, who was the stepmother of Leonard, went in the car with them. Leonard drove the car, Mrs. Gipson was in the center and Grady was on the right-hand side of the front seat. They stopped in the public highway in front of Marvin's home and Marvin came out into the highway and there was some conversation between Gipson and Marvin. According to Leonard, Yates told Grady Gipson that he had done Leonard wrong and Grady told Marvin that he was going to have papers made out against him, whereupon, according to Leonard, Marvin reached and caught Grady in the collar, and when he did Grady opened the glove compartment and reached for the pistol, but Marvin reached too and eventually Marvin came out with the pistol. Leonard got out and went around the car and Yates still had the pistol and was about 8 feet from Grady Gipson, and Leonard started tussling with Yates over the pistol and while they were each trying to take the pistol, it accidentally fired one time. The bullet struck Grady Gipson near the heart and he...