Central Nat. Bank v. General American Life Ins. Co., 7826.

• Decision Date: 10 May 1939
• Docket Number: No. 7826.,7826.
• Parties: CENTRAL NAT. BANK OF CLEVELAND v. GENERAL AMERICAN LIFE INS. CO.
• Court: U.S. Court of Appeals — Sixth Circuit

105 F.2d 878 (1939)

CENTRAL NAT. BANK OF CLEVELAND v. GENERAL AMERICAN LIFE INS. CO.

No. 7826.

Circuit Court of Appeals, Sixth Circuit.

May 10, 1939.

Marvin Harrison, of Cleveland, Ohio (Harrison & Marshman, of Cleveland, Ohio, on the brief), for appellant.

Robert H. Jamison, of Cleveland, Ohio (Robert H. Jamison and Robert F. Lee, both of Cleveland, Ohio, on the brief), for appellee.

Before ALLEN, HAMILTON, and ARANT, Circuit Judges.

ALLEN, Circuit Judge.

Appeal by a trustee beneficiary of a life insurance policy from an order of the District Court directing a verdict in favor of the insurer and holding it not liable under a double indemnity provision of the policy. The face amount of the policy has been paid. The insured, Edwin G. Thompson, was shot and killed near Albuquerque, New Mexico, on August 23, 1935, by Bryson Corbett. The insurer refused to pay the double indemnity benefits provided under the policy, claiming that the death did not fall within the class of accidents covered thereby.

The principal question is whether there is substantial evidence requiring the submission of the case to the jury. The District Court considered that the evidence clearly showed that Thompson's death did not result from accidental means. The policy provides that in order that liability under the double indemnity clause shall arise, the death of the insured must "result independently and exclusively of all other causes from bodily injuries effected directly from external, violent and accidental means." The death was caused by external and violent means, but the insurer claims that at the time of his fatal encounter with Corbett the insured knew, or had reasonable grounds to anticipate, that he was going into physical danger, or that his own misconduct caused his death.

An injury of this kind is not considered accidental where the insured calls forth the assault upon himself by his own wrongful act, or where, under such circumstances that he would naturally be presumed to know that the injury is likely to be inflicted, he voluntarily incurs an obvious hazard of this character, or places himself in a position where it may be reasonably expected that he will be assaulted. Occidental Life Ins. Co. v. Holcomb, 5 Cir., 10 F.2d 125; Isoard v. Mutual Life Ins. Co. of N. Y., 8 Cir., 22 F.2d 956; Taliaferro v. Travelers' Protective Ass'n of America, 8 Cir., 80 F. 368; McCrary v. New York Life Ins. Co., 8 Cir., 84 F.2d 790.

Conversely, where the insured is intentionally injured by another and the injury is not the result of misconduct or an aggression by the insured, but is unforeseen insofar as he is concerned, the injury is accidental within the meaning of the usual accident policy provision. Employers' Indemnity Corp. v. Grant, 6 Cir., 271 F. 136, 20 A.L.R. 1118; New York Life Ins. Co. v. Murdaugh, 4 Cir., 94 F.2d 104; Mutual Life Ins. Co. of N. Y. v. Sargent, 5 Cir., 51 F.2d 4.

The question, then, is whether this record contains substantial evidence that the shooting was not foreseen by Thompson, that it would not have been foreseen by a man of ordinary intelligence and prudence, and that Thompson was not the aggressor.

The testimony concerning the shooting necessarily is confined to Corbett's own statement, for Thompson was instantly killed; but the circumstances which led up to the shooting are illuminating.

Thompson, a former resident of Cleveland, Ohio, had been married to and divorced from Paula Thompson, who had secured a judgment for alimony upon which some $60,000 was due at the time of the shooting. An indictment for assault had been secured against Thompson in Cleveland by Paula Thompson, as the evidence indicates for the purpose of using it for extradition proceedings to force the payment of the alimony. Thompson had a ranch near Albuquerque and had lived...