Cont'l Cas. Co. v. Klinge, 11782.

• Decision Date: 03 June 1924
• Docket Number: No. 11782.,11782.
• Citation: 144 N.E. 246,82 Ind.App. 277
• Parties: CONTINENTAL CASUALTY CO. v. KLINGE.
• Court: Indiana Appellate Court

82 Ind.App. 277

144 N.E. 246

CONTINENTAL CASUALTY CO.

v.KLINGE.

No. 11782.^*

Appellate Court of Indiana, Division No. 1.

June 3, 1924.

Appeal from Superior Court, Marion County; T. J. Moll, Judge.

Action by Louis Klinge against the Continental Casualty Company. Judgment for plaintiff, and defendant appeals. Reversed, with instructions.Guilford A. Deitch and Frank G. West, both of Indianapolis, for appellant.

William H. Faust, of Indianapolis, for appellee.

REMY, J.

On May 30, 1921, appellant issued to Louis T. Klinge a policy of insurance, by which it agreed to pay to appellee, as beneficiary, the sum of $1,000 in event of insured's accidental death. On the night of October 8, and 9, 1921, when the policy was in full force and effect, the insured was on duty as watchman at the roundhouse of a certain railroad company. At about 4:00 o'clock on the morning of October 9, when leaving the roundhouse to get a lunch at a nearby restaurant, insured fell in with one Wininger, and, while the two were walking together, they came to an automobile standing in an alley. Whereupon Wininger said to insured, “Watch how quick I can take off a tire.” Insured advised Wininger not to take off the tire, but to go with him to lunch. The automobile belonged to one Wagner, a police officer, who came up as the tire was being removed. As Wagner approached, Wininger and insured fled up the alley, refusing to halt when commanded by Wagner so to do. When the men refused to stop. Wagner began firing his revolver. He fired five shots; the first two being fired directly at insured. One of the shots fired at insured struck him in the heel, the other entered his body, and proved fatal. Wagner, as a witness on the trial, was asked the following question: “I will ask you to state whether or not in so shooting this man, whom you first shot, if you intended to hit him?” To this question he answered, “I did.”

This action is by appellee, the beneficiary named in the policy, against appellant to recover on the policy for the death of insured.

On the trial of the cause, and at the conclusion of the evidence, each party moved the court to direct the verdict in his favor. Appellant's motion was overruled, and appellee's sustained; and on the directed verdict, which was for the full amount of the policy, judgment was rendered. In our view, the sufficiency of the evidence is the only question presented by appellant which requires consideration.

[1] Each party having, at the close of the evidence, requested the court to direct the verdict in his favor, such action was, in effect, a joint request for the withdrawal of the cause from the jury, and for submission of the same to the court for its decision. Kleine v. Houk (1922) 78 Ind. App. 146, 134 N. E. 872. The court, upon the filing by the parties of their respective motions for a directed verdict, might, with propriety, have discharged the jury and rendered its decision on the issues. Goings v. Davis (Ind. App. 1923) 141 N. E. 473. Nevertheless, the peremptory instruction and the verdict of the jury returned in accordance therewith were, in effect, the decision of the court. Deeter v. Burk (1915) 59 Ind. App. 449, 455, 107 N. E. 304. If the decision of the court thus rendered is sustained by sufficient evidence, the judgment must be affirmed; otherwise there must be a reversal.

[2][3] The policy which forms the basis of appellee's complaint specifically provides that it “does not cover any loss *** which results from the intentional act of the insured or of any other person,” excepting “assaults committed upon the insured for the sole purpose of burglary or robbery,” and “assaults incurred by the insured while engaged in the proper performance of his occupation,...