Davis v. Massachusetts Protective Ass'n

• Citation: 223 Ky. 626,4 S.W.2d 398
• Parties: DAVIS v. MASSACHUSETTS PROTECTIVE ASS'N.
• Decision Date: 14 February 1928
• Court: Court of Appeals of Kentucky

4 S.W.2d 398

223 Ky. 626

DAVIS v. MASSACHUSETTS PROTECTIVE ASS'N.

Court of Appeals of Kentucky

February 14, 1928

Rehearing Denied with Modification April 13, 1928.

Appeal from Circuit Court, Greenup County.

Action by Catherine W. Davis against the Massachusetts Protective Association. From a judgment for defendant, plaintiff appeals. Reversed, and remanded for further proceedings.

S. S Willis, of Ashland, for appellant.

Bruce &amp Bullitt and John E. Tarrant, all of Louisville, for appellee.

LOGAN J.

On November 19, 1921, the appellee issued to one Hager R. Davis a policy insuring him against loss resulting from bodily injuries effected directly and independently of all other causes by accidental means, and due solely to external violent, and involuntary causes. The indemnity was fixed at a certain sum for total disability, a certain sum for partial disability, a certain sum for specific losses, and a certain sum for accidental death. Each of these terms was defined by the policy itself. While the policy was in full force and effect, Hager R. Davis was shot and killed on May 20, 1925. The appellant is the widow of Hager R. Davis and beneficiary under the policy. In case of injury resulting in the death of the insured, the policy provides that the amount due thereunder shall be $25 a week for a period of 104 weeks, or a total sum of $2,600. The appellee declined to recognize any liability to appellant by reason of the death of her husband; whereupon she instituted this suit. At the conclusion of the evidence, the lower court instructed the jury to return a verdict in favor of appellee.

The facts show that Davis and his wife were estranged at the time of his death, and there had been ill feeling between Davis and one Bennett, who killed him. On the day he was killed, he and Bennett met on the streets of Fullerton, and there was a dispute over something Davis had said and a scuffle over a pistol in the possession of Bennett. Davis was unarmed. The testimony shows that Davis struck Bennett, and thereafter they grappled, and while they were engaged in the struggle the pistol which Bennett had was discharged, and Davis was fatally wounded. He died within three or four hours thereafter.

It is insisted by appellee that the act resulting in the death of Davis was not an accident within the meaning of the policy. The policy insures against accidents growing out of involuntary causes, and it is argued that Bennett voluntarily shot Davis and for that reason his death was not the result of an accident as defined in the policy.

Another contention made by appellee is that there is a provision in the policy which excludes injuries received while insured is engaged in fighting. It is insisted that he was engaged in a fight at the time he was shot, and that, because of the provision in the policy excluding injuries received by insured while he was engaged in fighting, no right of recovery exists. These two points embrace the entire defense of appellee, although another point is mentioned in its brief, which is that the injury was not due solely to involuntary causes. That is included, however, in the contention that the injury was not accidental within the meaning of the policy.

An examination of the authorities in this state is necessary. The first case which has been called to our attention is that of Hutchcraft's Ex'r v. Travelers' Insurance Co., 87 Ky. 300, 8 S.W. 570, 10 Ky. Law Rep. 260, 12 Am. St. Rep. 484. Hutchcraft had been waylaid and assassinated for the purpose of robbery. The insurance company made two defenses-one that, if Hutchcraft was killed by intentional means, his death was not accidental within the meaning of the terms of the policy which insured him against death "through external, violent, and accidental means"; and the other that the terms of the policy expressly exempted the insurance company from liability in case Hutchcraft should come to his death through injuries intentionally inflicted by another person. As to the first defense, this court held against the insurance company, and in so doing carefully defined the meaning of the term "accidental means." In concluding its careful reasonings, the court said:"

"In other words, we do not regard it as essential, in order to make out a case of injury by 'accidental means,' so far as the injured party is concerned, that the party injuring him should not have meant to do so; for, if the injured party had no agency in bringing the injury on himself, and to him it was unforeseen-a casualty-it seems clear that the fact that the deed was willfully directed against him would not militate against the proposition that, as to him, the injury was brought on by 'accidental means."

Another case in point is that of American Accident Co. of Louisville v. Carson, 99 Ky. 441, 36 S.W. 169, 18 Ky. Law Rep. 308, 34 L. R. A. 302, 59 Am. St. Rep. 473. Carson was shot and killed, as alleged in the petition in that case, not in a mutual affray, and that the killing was not provoked by any misconduct on the part of Carson and was not foreseen by him in time to have been avoided. The court was called upon to determine whether the means producing the death of the insured were "external, violent, and accidental," and also whether the death of insured was "an intentional injury inflicted by another" within the meaning of the policy. The court, in passing on these questions, said:

"On the first point little need be said. While our preconceived notions of the term 'accident' would hardly lead us to speak of the intentional killing of a person as an 'accidental' killing, yet no doubt can now remain, in view of the precedents established by all the courts, that the word 'intentional' refers alone to the person inflicting the injury, and if, as to the person injured, the injury was unforeseen, unexpected, not brought about through his agency designedly, or was without his foresight, or was a casualty or mishap not intended to befall him, then the occurrence was accidental, and the injury one inflicted by accidental means within the meaning of such policies."

The case of Campbell v. Fidelity & Casualty Co. of New York, 109 Ky. 661, 60 S.W. 492, 22 Ky. Law Rep. 1295, is another case where this court was called upon to construe the terms of a policy against accidental death where the insured was shot and killed. One of the defenses made by the insurance company in that case was that the shot was not accidental but intentional, and was fired by the man who killed insured in his necessary self-defense. He was killed while engaged in an affray with a policeman. We do not think the opinion in that case departs from the principles announced in the two cases above cited. It goes a little further in holding against the contention of the insurance company than the other two opinions.

Ætna Life Insurance Co. v. Rustin, 151 Ky. 103, 151 S.W 366, is another case where this court was called upon to construe...