Bingham v. Continental Cas. Co.
| Decision Date | 22 April 1927 |
| Citation | 293 S.W. 968,219 Ky. 501 |
| Parties | BINGHAM v. CONTINENTAL CASUALTY CO. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Bell County.
Action by Lizzie Bingham against the Continental Casualty Company. Judgment for defendant, and plaintiff appeals. Affirmed.
James M. Gilbert, of Pineville, for appellant.
N. R Patterson, of Pineville, for appellee.
In this action brought by the appellant against the appellee to recover the amount of an accident insurance policy on the life of her husband of which she was the beneficiary, the court, at the close of her case, peremptorily instructed the jury to find for the appellee, and she has appealed.
The policy sued on insured the life of Ed Bingham against loss effected solely and independently of all other causes by the happening of an external, violent, and purely accidental event. A subsequent clause in the policy provided that it did not cover any loss if the injury causing it resulted from the intentional act of the insured or of any other person except however, assaults committed upon the insured for the sole purpose of burglary or robbery. By an amended petition appellant admitted that Ed Bingham had been killed by the intentional act of Frank Young, but she claimed that her husband had been killed in the course of an assault committed for the sole purpose of robbery. To sustain her contention, she introduced testimony tending to prove the following facts:
Just after dark, and about half an hour before Ed Bingham was shot, he and the appellant were out on the railroad track a short distance in front of their home, and while there he fired his revolver at least one and possibly more times for the purpose of testing it to see whether it would hang or not. At that time the appellant observed that her husband had a roll of money on the outside of which a $20 bill was wrapped, but she did not remember the size of the roll. The next time she saw him he was in the hospital, where he had been taken after he was shot, and where he soon died as a result of the gunshot wound. Ed Bingham was shot while standing on the front porch of his home just in front of the doorway leading into a room where a bright fire was burning. Immediately after the shot which fatally wounded him, his father, who was living nearby, rushed over to the house and found him lying on the front porch with a man by the name of Bob Collet beside him. Bingham's pistol was then lying on the table in the dining room. The father had heard no quarreling prior or subsequent to the shot. He had seen his son in Pineville that day with some $40 to $50 upon him. After the shooting, he examined his son's clothes and found no money. He admitted, however, that this examination took place in the hospital the next day after his son was killed and after the clothes had been removed from the body. He said that when he got to the porch just after the shooting, his son, who was then conscious, exclaimed, "They killed me and killed me for nothing."
Nancy Williams, who lived near by, said that just after the shooting she looked from her window over to Bingham's house and saw somebody stooping over the person of the deceased, but she did not know who it was. Gracie Philpot also testified that from a house some 90 feet away she saw somebody on the porch just after the shot was fired, but she too did not know who it was. Robert Collet testified that he was in his house about 20 or 30 feet away from Bingham's house with the door shut. When the shot was fired, he at once jumped up, opened his door and ran over to the porch of Bingham's home. He was asked, "Had there been time for anybody to get to that body before you got there?" He answered, "I don't think so." He was then asked, "You are quite positive you were the first man there?" and he answered, "Yes, sir." He further testified that it could not have been a half minute between the time when the shot was fired and the time when he got to the porch, that he saw no one around, and that when he got to the porch he stooped over, picked up the wounded man's head and held it until his father came. It was undoubtedly Collet whom Nancy Williams and Gracie Philpot saw on the front porch of the Bingham home.
This was all the testimony produced bearing on how or why Ed Bingham...
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