Cornwell v. Fraternal Accident Association
| Decision Date | 19 November 1896 |
| Citation | 69 N.W. 191,6 N.D. 201 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Ransom County; Lauder, J.
Action by Lewis R. Cornwell against the Fraternal Accident Association of America. Judgment for plaintiff. Defendant appeals.
Affirmed.
T. A Curtis, for appellant.
P. H Rourke, for respondent.
From a judgment in favor of the plaintiff, based upon a verdict in his favor directed by the court, the appeal in this case was taken. The object of the action was to recover the amount due under an insurance policy issued by defendant to the plaintiff. Among other provisions, the policy contained one entitling the plaintiff to $ 1,000 for the loss of a hand through external, violent, and accidental means. The plaintiff lost his left hand by the accidental discharge of a gun he was carrying. Only two defenses are relied on. The facts do not appear to be in controversy.
It is first urged that the plaintiff was injured while violating the laws of this state. The policy declares that it does not cover injuries resulting wholly or partly, directly or indirectly, from violating rules or laws of a corporation. We shall assume, for the purposes of this case, that this language embraces the laws of this state, and does not relate solely to laws of a corporation, and rules of a corporation as is contended by counsel for the plaintiff. What law of this state, then, was the plaintiff engaged in the violation of at the time he was injured? He had started out with his loaded gun for the purpose of killing prairie chickens. To have killed them at that season of the year (it being December 12th) would have been a violation of Ch. 69, of the laws of 1891. But the plaintiff was not engaged in the killing of anything at the time the accident occurred. He was climbing a bank, and, his foot having slipped, he caught hold of a limb, and was in the act of drawing himself up by means thereof, when in some way the gun was discharged; the contents lodging in his left hand, shattering it so terribly that amputation was necessary. The only possible ground on which it can be claimed that the plaintiff was violating the laws of this state at the time the gun was discharged, and that the injury he sustained resulted from such violation, is that he was guilty of attempting to kill prairie chickens. Under provision of § § 7693, 7694, Rev. Codes, an attempt to commit a crime is of itself a substantive offense. Section 7693 declares that "an act done with intent to commit a crime, and tending but failing to affect its commission, is an attempt to commit that crime;" and § 7694 provides that "every person who attempts to commit a crime and in such attempt does any act toward the commission of such crime, but fails or is prevented or intercepted in the perpetration thereof, is punishable, where no provision is made by law for the punishment of such attempt, as follows," etc. It is too clear for discussion that, at the time the plaintiff was injured, he had not done any act tending to effect the commission of the offense of killing prairie chickens out of season. Intent had ripened into preparation. But the plaintiff had not, in deeds, passed beyond the point of preparation, and entered upon the execution of his criminal project. It is impossible to formulate a rule which will constitute an unerring guide in assigning to cases which occupy the debatable ground their respective places upon one side or the other of the line which separates preparation from legal attempt. The question must, from its very nature, always remain difficult of solution. The wisest course for tribunals to pursue with respect to it is to deal with each cause as it arises, in the light of a few general principles applicable to such cases. We shall content ourselves with the statement of our conclusion that the plaintiff had not, within the meaning of our law, attempted the killing of prairie chickens, although he had formed the purpose to shoot them, and had made preparations to accomplish such object. The authorities fully sustain our view. Mulligan v. People, 5 Park Cr. 105; State v. Clarissa, 11 Ala. 57; Hicks v. Com., (Va.) 86 Va. 223, 9 S.E. 1024; Stabler v. Com., 95 Pa. 318; State v. Butler, (Wash.) 8 Wash. 194, 35 P. 1093; People v. Murray, 14 Cal. 159; 1 Bish. Cr. Law, § § 760, 762, 764; Reg. v. Cheeseman, 9 Cox Crim. Cas. 100; Reg. v. Taylor, 1 Fost. & Fin. 511.
The second ground of...
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