Freeman v. Commonwealth Life Ins. Co. of Louisville, Ky.

• Decision Date: 30 June 1971
• Docket Number: No. 2,No. 1170A182,1170A182,2
• Citation: 149 Ind.App. 211,26 Ind.Dec. 231,271 N.E.2d 177
• Parties: Martha Smith FREEMAN, Appellant, v. COMMONWEALTH LIFE INSURANCE COMPANY OF LOUISVILLE, KENTUCKY, Appellee. . Division
• Court: Indiana Appellate Court

Page 177

271 N.E.2d 177

149 Ind.App. 211

Martha Smith FREEMAN, Appellant, v. COMMONWEALTH LIFE INSURANCE COMPANY OF LOUISVILLE, KENTUCKY, Appellee.

No. 1170A182.

Appellate Court of Indiana, In Bank. Division No. 2.

June 30, 1971.

Rehearing Denied July 15, 1971.

John R. Dollens, Scottsburg, for appellant.

Fox & Smith, Jeffersonville, for appellee.

WHITE, Judge.

E. Everett Smith was shot and killed by a pistol Wilgus Bowling had pulled from his pocket during a fight between the two in which Smith was the aggressor. ¹ At the time he was shot Smith had Bowling down on the ground and was choking him with his hand or hands on Bowling's neck.

Smith's life was insured by the defendant-appellee, Commonwealth Life Insurance Company of Louisville, Kentucky, under a group policy issued to his employer, Louisville Cement Company, and a certificate of that coverage issued to Smith. It provided a death benefit of $7,000.00, which was paid, and an additional benefit of $7,000.00 for death by accidental means, ² which was not paid. Smith's widow (since remarrried), his named beneficiary, brought this action for the additional benefit. The defendant insurance company admitted all the allegations of the complaint except the allegation that Smith 'suffered the loss of his life as a result directly and independently of all other causes, of bodily injuries effected solely through external, violent, and accidental means * * *.' In argument, however, the external and violent nature of the means of death is not disputed. The only issue, then, is whether the 'means' was accidental, which is to say, whether the firing of the fatal shot was accidental.

The insurance company moved for summary judgment 'on the grounds that the pleadings and depositions of Martha Smith Freeman and Wilgus Bowling * * * show that the defendant is entitled to judgment as a matter of law.' The rationale of the brief appended to the motion is, in substance, that the 'undisputed facts' bring the case within what is said to be the general rule in the United States: '(T)hat there will be no liability where the harm to the attacker-insured is such a probable and reasonably foreseeable consequence of his aggression that it would not be regarded by the ordinarily reasonable man as 'accidental'.' The circuit court, in granting that motion, apparently agreed that the 'reasonably foreseeable' rule is the law in Indiana and that it renders defendant 'entitled to judgment as a matter of law.'

Plaintiff's appeal is not premised on a contention that the 'reasonably foreseeable' rule is not the law in Indiana. Her contention is that there is a genuine issue of material fact as to whether the pistol shot was a probable and reasonably foreseeable consequence of decedent's acts. We hold that plaintiff-appellant's position is well taken and that the judgment should be reversed. But we also hold that the rule of reasonable foreseeability is not the law and should not govern further proceedings on remand.

For Indiana this is a case of first impression in that no reported Indiana case is an action for accidental death benefits by the beneficiary of an alleged aggressor-insured killed in an encounter with his alleged victim.

Perhaps the Indiana cases which come closest in factual similarity are The Supreme Council Order of Chosen Friends v. Garrigus (1885), 104 Ind. 133, 3 N.E. 818, and Phoenix Accident & Sick Benefit Association v. Stiver (1908), 42 Ind.App. 636, 84 N.E. 772, although neither involves an aggressor-insured.

The plaintiff-appellee in the Supreme Council case was a member of a fraternal society whose by-laws provided benefits for accidental injuries. The question decided was whether a demurrer should have been sustained to an answer alleging that appellee's injury was a pistol shot wound intentionally inflicted by an adversary in an affray. The court said:

'The charge that appellee was engaged in an affray is, moreover, the statement of a conclusion, and is not sufficient to meet the averments in the complaint that appellee received the would without any agency, fault, or negligence on his part. If the facts were stated instead of the conclusion, as the rules of pleading require, it might appear that the only part appellee took was in defense of his person against the assaults of his adversary or adversaries; and that thus, whatever injuries he received were received without any fault or wrong on his part. Nor will it do to say that because the injury was intentionally inflicted by the assailant and wrong-doer, it was not an accident to appellee, within the meaning of the word 'accident' as used in the relief fund laws, etc., of the ordor. To thus limit the word 'accident' would be to thwart the manifest object of the order, and deprive the members of the benefits they have a right to expect upon the payment of their dues and assessments. The word 'accident,' as used in those laws and in the relief fund certificates held by the members, should be given its ordinary and usual signification, as being an event that takes place without one's foresight or expectation. It will not do to say that because a desperado waylays, assails, and wounds a member intentionally, that wounding is not an accident to the member within the laws, etc., of the order.' (104 Ind. at 140, 3 N.E. at 822.)

In the second case, Phoenix Accident & Sick Benefit Association v. Stiver, the insured was killed by stab-wound in an unprovoked attack by an insane man on the street. In holding that a demurrer to the complaint was properly overruled, we said:

'A definition of death by accident means within the meaning of accident policies has been clearly enunciated in the case of Ripley v. Railway, Passengers' Assurance Co. (1870), 20 Fed.Cas. 823 (No. 11,854); 2 Bigelow (L. and A.) Ins. Cas. 738. * * * The insured was attacked and robbed while walking * * *. The court said: 'The injuries were effected by violence, but was there any accident? Mr. Webster defines 'accident' to be an event that takes place without one's foresight or expectation, an event which proceeds from unknown cause, or an unusual effect of a known cause, and therefore not expected; chance, casualty, contingency, unexpectedly happening by chance, unexpectedly taking place, not according to the usual course of things. Perhaps in a strict sense, any event which is brought about by design of any person is not accident, because that which has accomplished the intention and design, and is expected, is a foreseen and foreknown result, and therefore not strictly accident. Yet I am persuaded this contract should not be interpreted so as thus to limit its meaning, for the event took place unexpectedly, and without design on Ripley's part. It was to him a casualty, and in the more popular and common acceptation of the word 'accident,' if not in its precise meaning, includes any event which takes place without the foresight or expectation of the person acted upon or affected by the event. * * * I think in construing a policy of insurance against accident, issued to all sorts of people, a majority of whom do not, as the company well know (sic), nicely weigh the meaning of words and terms used in it, courts are called upon to interpret the contract as a large class not versed in lexicology are sure to regard its terms and scope. That which occurs to them unexpectedly is by them called 'accident.' The company fix(es) the terms of the contract, and are to be held, in the absence of plain and unequivocal exceptions (and provisos), to intend what, in popular acceptation, the insured party is likely to understand by its terms.'

'In the case of American Accident Co. (etc.) v. Carson (1896), 99 Ky. 441, 36 S.W. 169, 34 L.R.A. 301, 59 Am.St.Rep. 473, one Carson was shot by one Burton intentionally, but without provocation * * *. The court said: '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." (42 Ind.App. at 639, 84 N.E. at 773.)

The significance of those quotations, so far as the case at bar is concerned, is that the nature of the incident, whether it is accidental or voluntary, is to be determined from the viewpoint of the injured party, and that what constitutes an 'accident', or what 'means' are 'accidental', is to be determined by what people usually and ordinarily consider to be 'accidental'. Furthermore, and perhaps most important, when foresight and expectation are spoken of it is not the foresight and expectation of a reasonably prudent person, nor even what the person injured should reasonably have foreseen. Rather, it is 'as to the person injured', that the foresight and expectation are applied.

Yet those cases suggest, though they do not hold, that the old common law tort concept of an accident as an event which occurs without human fault ³ contributing thereto (perhaps even remotely) is what is meant by 'accidental means' in a contract which provides an indemnity for injury or death by accidental means. We do not believe that is the law in Indiana. The recent decisions condemning the 'pure accident' and 'mere accident' jury instructions in negligence cases clearly demonstrate, that the old common law concept is not the ordinary and usual concept of accident.' ⁴ 4] To the non-lawyer an event is an accident no matter how much the injured party's fault may have contributed to causing it, so long as he did not intend for it to happen. As the Indiana Supreme Court said in Miller v. Alvey (1965), 246 Ind. 560, 565, 207 N.E.2d 633, 636:

'What is the meaning of the term 'accident? Webster's Third New International Dictionary (p. 11), defines it inter alia as 'a usually sudden event or change occurring without intent or volition through carelessness,...