Bibbs v. Fidelity Health & Acc. Co.
| Decision Date | 21 May 1934 |
| Docket Number | 18116 |
| Citation | 71 S.W.2d 764 |
| Parties | THOMAS J. BIBBS, ADMINISTRATOR OF THE ESTATE OF GENEVIEVE BIBBS, DECEASED, Respondent, v. FIDELITY HEALTH AND ACCIDENT COMPANY, A CORPORATION, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.
Opinion by Campbell, C. Reynolds, C., concurs. All concur.
Plaintiff, as the administrator of the estate of Genevieve Bibbs, deceased, brought this suit upon a policy of accident insurance, which the defendant issued to said Genevieve Bibbs on June 15, 1929, and in which the defendant promised to pay to the estate of said insured the sum of $ 600 in event her death was caused directly and independently of all other causes through external, violent and accidental means. The other pertinent provision of the policy follows:
"The insurance under this policy shall not cover bodily injuries or disease caused directly or indirectly by war, * * * or injuries intentionally inflicted upon the insured by any person other than herself (assaults by burglars or robbers excepted) or while violating the Law. * * *"
The cause was tried to the court and jury. At the close of all the evidence the jury, under the peremptory direction of the court, returned verdict for the defendant. The plaintiff filed motion for new trial, which was sustained. The defendant has appealed.
The petition alleged the issuance of the policy and that the insured died on April 14, 1931, "from the gunshot wound * * * made by a leaden bullet fired from a gun held and discharged by a person other than the plaintiff (insured) and whose purpose in firing said gun was to plaintiff unknown. * * *"
The answer pleaded the quoted clause of the policy and further alleged that the insured Genevieve Bibbs was fatally injured on April 14, 1931, by the intentional act of another person "that said injury was caused by a leaden bullet fired from the gun held and discharged by one William C. Moffett and that said act and homicide was the intentional act of said William C. Moffett"; that at the time of her death said decedent was violating the law and was under the influence of an intoxicant.
The plaintiff introduced evidence tending to show that the insured's death was caused by a gunshot wound but did not introduce any evidence showing the attending circumstances nor by whom the fatal shot was fired. The coroner, plaintiff's witness, testified that "the cause of death in this case was homicide, firearms." It is not claimed that the coroner had any personal knowledge concerning the question as to whether or not the shooting was intentional or accidental.
The defendant introduced evidence tending to...
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