Continental Cas. Co. v. Cunningham

• Decision Date: 21 May 1914
• Docket Number: 576
• Citation: 188 Ala. 159,66 So. 41
• Parties: CONTINENTAL CASUALTY CO. v. CUNNINGHAM.
• Court: Alabama Supreme Court

66 So. 41

188 Ala. 159

CONTINENTAL CASUALTY CO. v. CUNNINGHAM.

No. 576

Supreme Court of Alabama

May 21, 1914

Rehearing Denied July 25, 1914

Appeal from Circuit Court, Calhoun County; Hugh D. Merrill, Judge.

Action by Mary Bee Cunningham against Continental Casualty Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

The assured was a police officer of the city of Anniston, and was shot and killed by one McGuffin, under the following circumstances: On Sunday afternoon, June, 1911, the Anniston chief of police, accompanied by the sheriff, went into the house of McGuffin to arrest him. He was sitting on the porch with an army rifle across his lap and a pistol in his hand. When the chief of police accosted McGuffin, he raised his gun and fired, whereupon the chief began firing, and both emptied their guns at each other. The officers then retired, the chief being wounded, and McGuffin also went off in another direction. Other officers pursued him, and he carried on a running battle, loading and firing at his pursuers. After going several blocks, he was seen by Policemen Cunningham and Dashwood, and Cunningham went around in front of McGuffin and, when within about 15 feet of him, threw up his hands saying: "Hold on, friend; wait a minute." Thereupon McGuffin raised his gun, aimed directly at Cunningham, and shot him through the head. Dashwood who had remained about 40 yards away, fired at McGuffin as he walked away, and McGuffin returned his fire at intervals when the officer exposed himself to view. As McGuffin proceeded, he saw an automobile towards which he ran firing his pistol. Its occupant got out and McGuffin got into the machine, and, while attempting to start it, was shot and captured. A number of witnesses for plaintiff testified as to McGuffin's condition at or about the time of the killing, stating variously that he looked like he was drinking, he was drinking some, he was pretty full, was staggering, talked like a drunken man, looked like a drunken man, appeared to be drinking pretty heavy, from the way he talked there, and the way he was acting. There was also evidence of drunken conduct by McGuffin shortly before the incidents which led up to the killing of Cunningham. The complaint avers that insured was accidentally shot, while defendant pleads that he was shot by the intentional act of McGuffin.

The policy provides as follows:

Part VI-B. If any of the losses covered by this policy (1) where the injury causing the loss results wholly or in part from voluntary exposure to unnecessary or obvious risk of injury, or from the intentional act of the insured or any other person, *** then *** the amount payable to be one-fifth of the amount which otherwise would be payable under this policy, anything in this policy to the contrary notwithstanding.

The only question involved as to defendant's liability is whether or not it is limited under the quoted provision to one-fifth of the face of the policy. On the issue submitted by the trial court to the jury, their verdict was for plaintiff for the full amount of the policy. The material assignments of error present for review the propriety of the several charges given for the jury at the instance of plaintiff, and the refusal of a number of charges requested by defendant, all of which sufficiently appear from the opinion.

Knox, Acker, Dixon and Sterne, of Anniston, for appellant.

Blackmon, Merrill & Walker & Willett & Willett, all of Anniston, for appellee.

SOMERVILLE J.

The primary question presented by this appeal is upon the interpretation and construction of that clause of the insurance policy which limits the amount payable thereunder to one-fifth the face of the policy "where the injury causing the loss results wholly or in part *** from the intentional act of the insured or any other person."

What is an "intentional act" may seem a matter of very simple solution to the intelligent layman, but to the judge who is familiar with the learning of the books, and who ventures into the metaphysical subtleties which incumber judicial definition, the question is full of difficulty.

In its present application, the phrase ought to be given that simple and common sense meaning which the parties to the contract intended it should express.

Obviously, we think, this meaning is not to be determined upon a consideration merely of the criminal responsibility of the actor, nor of his moral accountability according to the refined principles of psychology.

If the actor has intelligence enough to understand the physical nature and consequences of his act, and, without the compulsion of an irresistible physical force or of an irresistible insane impulse, consciously directs his action so that the injury of the insured is the natural or probable consequence thereof, then that injury is the...