Cooper v. National Life Insurance Company of the United States of America

• Decision Date: 02 July 1923
• Citation: 253 S.W. 465,212 Mo.App. 266
• Parties: WILL COOPER, Respondent, v. NATIONAL LIFE INSURANCE COMPANY OF THE UNITED STATES OF AMERICA, Appellant
• Court: Missouri Court of Appeals

253 S.W. 465

212 Mo.App. 266

WILL COOPER, Respondent, v. NATIONAL LIFE INSURANCE COMPANY OF THE UNITED STATES OF AMERICA, Appellant

Court of Appeals of Missouri, St. Louis

July 2, 1923

Appeal from the Circuit Court of the City of St. Louis.--Hon Franklin Miller, Judge.

REVERSED AND REMANDED (with directions).

Judgment reversed and cause remanded.

Martin T. Farrow for appellant.

J. B Boyer, of Counsel.

(1) The court erred in refusing to give defendant's instruction No. 1 in the nature of a demurrer to the evidence at the close of plaintiff's case in chief; defendant's instruction No. 2 (13) in the nature of a demurrer to the entire evidence; in giving instructions Nos. 1 and 2, and refusing defendant's requested instructions Nos. 14 and 15. (a) The instructions as given dealt entirely with matters not in dispute, and entirely ignored the only essential question: Were the injuries excluded from the coverage of the policy by the intentional act clause? Strother v Business Men's Acc. Ass'n, 193 Mo.App. 718, 188 S.W. 314. (b) The intentional act clause here involved must be distinguished from the so-called "design" and "intentional injury" clauses. Strother v. Business Men's Acc. Ass'n, 193 Mo.App. 718, 188 S.W. 314; Continental Casualty Co. v. Cunningham, 188 Ala. 159. (c) The act of Barry in shooting was admittedly intentional, and it is immaterial that the exact injuries resulting were not intended or that the wrong person was hit. Strother v. Business Men's Acc. Ass'n, 193 Mo.App. 718, 188 S.W. 314; National Life Ins. Co. of the U. S. v. Coughlin, (Colo.) 212 P. 486; Railway O. & E. Acc. Ass'n v. Drummond, 56 Neb. 235; Ryan v. Continental Cas. Co., 94 Neb. 35. (d) To hold defendant liable is to substitute a contract made by the court for one made by the parties. Mitchell v. German Com'l Acc. Co., 179 Mo.App. 1, 161 S.W. 362; Frankel v. Massachusetts Bonding & Ins. Co., 177 S.W. 775; Bothmann v. Metropolitan Life Ins. Co., 231 S.W. 1007; Travelers' Ins. Co. v. McCarthy, 15 Colo. 351. (e) In order to construe this policy so as to cover the injuries we must add words not used or change words used, transpose some and add others. (f) The purpose of the clause is obvious and well founded in the history of its development and practical experience. (g) The validity of the clause is settled beyond dispute. Strother v. Business Men's Acc. Ass'n, 193 Mo.App. 718, 188 S.W. 314; Washington v. Union Cas. & Surety Co., 115 Mo.App. 627, 91 S.W. 988; Phelan v. Travelers' Ins. Co., 38 Mo.App. 640. (2) The court erred in giving instruction No. 3 and refusing defendant's requested instruction No. 14. (a) There is no liability under the policy and obviously the refusal to pay was not vexatious. (b) If there was liability, an open question was involved giving the defendant the right to litigate it. Non-Royalty Shoe Co. v. Phoenix Assur. Co., 277 Mo. 399, 210 S.W. 37; Berryman v. Southern Surety Co., 285 Mo. 379, 227 S.W. 96; State ex rel. v. Allen, Mo. , 243 S.W. 839. (c) There is no evidence of vexatious refusal. Merkel v. Ry. Mail Ass'n, 205 Mo.App. 484, 226 S.W. 299; Widdicombe v. Penn Mutual Life Ins. Co., 241 S.W. 437; Miller v. Firemen's Ins. Co., 206 Mo.App. 475, 229 S.W. 261; Berryman v. Md. Motor Car Co., 199 Mo.App. 503, 204 S.W. 738; Bennett v. Standard Acc. Ins. Co., 209 Mo.App. 81, 237 S.W. 144.

Arthur F. C. Blase for respondent.

(1) To relieve an insurance company of liability for disability growing out of injuries intentionally inflicted upon the insured, three elements must be present: An intentional act, directed against a specific person, and an injury to such specific person directly resulting from such intentional act. 1 C. J. 442; Matson v. Travelers' Ins. Co. , 93 Me. 469; Newsome v. Travelers' Ins. Co., 143 Ga. 785; Gen. Acc. etc. Corp v. Hymes, 185 P. 1085; Travelers P. Assn. v. Fawcett, 56 Ind.App. 120; Hutchcraft's Exr. v. Travelers' Ins. Co., 87 Ky. 300. (2) The "intentional act" clause does not apply in a case where A intentionally fires a shot at B, but which shot hits C, the insured. Hutchcraft's Exr. v. Travelers' Ins. Co., 87 Ky. 300. (3) Where there is a doubt in respect to the meaning of the terms of a clause in an insurance policy, the doubt must be resolved in favor of the interpretation of the insured, although intended otherwise by the insurer, as the presumption is that on this construction the insured took the policy. Renn v. Supreme Lodge K. of P., 83 Mo.App. 449; Mitchell v. Accident Co., 179 Mo.App. 6.

SUTTON, C. Allen, P. J., Becker and Daues, JJ., concur.

OPINION

SUTTON, C.

--This action is founded on an accident insurance policy. The policy in general terms insures respondent against bodily injuries affected solely through external, violent and accidental means and in a subsequent clause makes provision for exemption from liability as follows:

"This policy does not cover injuries, fatal or non-fatal, . . . which are caused wholly or in part by the intentional act of any person other than the insured (assaults committed on the insured for the sole purpose of burglary or robbery excepted)."

The abstract of the record, which we commend for its conciseness, discloses that the respondent during the life of the policy suffered injuries to his person of the character and in the manner following:

On the afternoon of October 24, 1920, the insured, Will Cooper, Calvin Boyd, Linkie Perkins, Floyd Hull and Eugene Blair, all colored, were in a soft drink parlor in the city of St. Louis. There was an old grudge of about two years standing between George Barry and the Perkins woman. An altercation arose between them and Barry struck at the Perkins woman and called her a bad name, and she in turn called him a bad name and he again struck at her. Blair interfered and told Barry to go. Barry went out and in a few minutes came back flourishing a gun in his hand and aiming it at the Perkins woman, called her bad names. She seeing the gun and knowing he was after her, grabbed the insured, who was not a party to the quarrel, and got back of him so that he was between Barry and her. Barry started shooting and the first shot struck the insured in the right thigh, which shot caused the disability for which indemnity is sought. After this first shot the insured broke away from the Perkins woman and Barry then shot her twice.

Final proofs were executed and furnished defendant under date of December 29, 1920, and contained among other things in answer to a question as to how the accident occurred the statement, "George Barry shooting at Linkie Perkins hit me."

Demand in writing for the indemnity was made under date of January 12th, and under date of January 29, 1921, final demand was made in which was included the amount of indemnity accrued since the first demand.

Under date of January 29th, the appellant wrote the respondent's attorney denying liability under the policy on the ground that the policy provided that there should be no liability thereunder for disability resulting from the intentional act of any person other than the insured and that the proofs submitted showed that the injury was caused by the intentional firing of a revolver, and requesting respondent, if he claimed the facts were not as set forth in the proofs submitted, to inform appellant just what he claimed the facts to be.

The trial resulted in a verdict and judgment against the appellant for $ 203.05; $ 90 being for disability indemnity, $ 4.05 for interest, $ 9 for damages and $ 100 for attorney fees.

I. The appellant contends that under the exemption clause of the policy above set out, it is not liable for the injury inflicted upon the insured as shown by the evidence and insists that its demurrer to the evidence should have been sustained.

The question for decision is whether or not the injury so inflicted was "caused wholly or in part by the intentional act of any person other than the insured," within the meaning of the policy.

Appellant's counsel insists that since the revolver with which Barry inflicted the injury was intentionally discharged, the injury was caused by the intentional act of discharging the revolver and that therefore the insured's injury comes within the exemption clause of the policy as above set out.

The observations of Justice Somerville in Continental Casualty Company v. Cunningham, 188 Ala. 159, 162, are not inappropriate here:

"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 subleties which incumber, judicial definition, the question is full of difficulty."

It may be helpful to consider what constitutes an act as it is ordinarily understood. An act does not consist alone of power exerted, but includes the immediate effect of the power exerted. Thus, the driver of an automobile runs down a pedestrian on a highway; the act does not consist merely of the power exerted in running the automobile along the highway, but includes the striking of the pedestrian. One person throws a stone and strikes another person with it; the act does not consist merely of the power exerted in casting the stone, but includes the striking of the other person with it. A locomotive engineer runs a locomotive along the rails and strikes a vehicle at a crossing; the act does not consist merely of the power exerted in running the locomotive, but includes the striking of the vehicle. A person strikes another with his fist; the act does not consist merely of the power exerted in projecting the fist, but includes the impact of the fist as well. An assassin stabs his victim with a dagger; the act does not consist merely of the power exerted in thrusting the dagger,...