Butler v. Peninsular Life Ins. Co.

• Decision Date: 10 November 1959
• Docket Number: No. B-129,B-129
• Citation: 115 So.2d 608
• Parties: Norman BUTLER, Appellant, v. PENINSULAR LIFE INSURANCE COMPANY, a corporation, Appellee.
• Court: Florida District Court of Appeals

Page 608

115 So.2d 608

Norman BUTLER, Appellant, v. PENINSULAR LIFE INSURANCE COMPANY, a corporation, Appellee.

No. B-129.

District Court of Appeal of Florida, First District.

Nov. 10, 1959.

Albert J. Datz, Jacksonville, for appellant.

Milam, LeMaistre, Ramsay & Martin, Jacksonville, for appellee.

TAYLOR, HUGH M., Associate Judge.

The parties will be referred to as they appeared in the court below, where appellant was plaintiff and appellee was defendant.

Plaintiff sued defendant to recover the indemnity specified for the loss of an eye in a policy of insurance issued by defendant to plaintiff.

Defendant denied liability, asserting that plaintiff's injury was not covered by the policy because of the following exclusion:

'The agreement as to benefit under this policy, however, shall be null and void if the insured's death or other loss covered by this policy results directly or indirectly from any of the following causes, from intentional act or acts of any person or persons.'

At the conclusion of the evidence on a trial of the case, the trial court instructed a verdict and entered judgment for the defendant. Plaintiff has appealed.

For the purpose of this appeal the facts developed by the evidence, though not without conflict, may be stated as follows: One James Brooks intentionally discharged a shotgun twice, the first time aiming over the head of plaintiff without intent to injure him, the second time aiming directly at plaintiff and having a conscious intent to injure plaintiff but without a specific intent to put out plaintiff's eye. A pellet from one of these shots struck and caused the loss of plaintiff's left eye.

Without expressing any opinion as to the weight of the evidence, we find that there was, in the testimony of the plaintiff, evidence from which the jury could have found that the plaintiff's injury resulted from one of the pellets of the first shot ricocheting from a branch of a tree and striking plaintiff's eye.

An insurance policy almost identical in language with that before us was construed by the Supreme Court in the case of Golden v. Independent Life & Accident Insurance Co., 77 So.2d 841, 843 in which the court discussed the earlier case of Order of United Commercial Travelers of America v. Singletary, 111 Fla. 248, 149 So. 480, and said:

'We there held that under such a clause there can be no recovery for injury resulting from the intentional act of another 'with intent to injure the insured, the nature of which injury reasonably could have been foreseen as a direct result of the intentional act'. We also held in that case that where the injury which...