General Acc., Fire & Life Assur. Corp. v. Hymes

• Decision Date: 09 December 1919
• Docket Number: 9284.
• Citation: 185 P. 1085,77 Okla. 20,1919 OK 363
• Parties: GENERAL ACCIDENT, FIRE & LIFE ASSURANCE CORPORATION, Limited, v. HYMES.
• Court: Oklahoma Supreme Court

185 P. 1085

77 Okla. 20,1919 OK 363

GENERAL ACCIDENT, FIRE & LIFE ASSURANCE CORPORATION, Limited, v. HYMES.

No. 9284.

Supreme Court of Oklahoma

December 9, 1919

Syllabus by the Court.

The burden of proof rests upon the insurer to establish the fact that death or injury has resulted from one of the excepted clauses enumerated in a policy of accident insurance.

Where the meaning of a policy of insurance is ambiguous, or so drawn as to be fairly susceptible of different constructions it will be construed more strictly against the insurer, and that construction adopted which is most favorable to the insured.

Where one person injures another and the injury is not the result of misconduct or provocation by the injured person and is unforeseen by him, it is as to him an "accident" within the meaning of an accident policy insuring him against bodily injuries effected through external, violent, and accidental means.

[Ed Note.-For other definitions, see Words and Phrases, First and Second Series, Accident.]

A provision contained in an accident insurance policy, which excepts from operation of the policy "injuries intentionally inflicted upon the insured by any other person," contemplates injuries intended against the insured and not injuries intended against another, and such exception will not relieve the insurer from liability for an injury to the insured inflicted by another person, where the other person, intending to injure some one other than the insured, mistook the insured for the person to be injured and intentionally inflicted upon him the bodily injury while the insured was not aware of the intent to injure him and had done nothing to bring about the injury.

[Ed Note.-For other definitions, see Words and Phrases, First and Second Series, Injury.]

Error from District Court, Wagoner County; Ernest B. Hughes, Judge.

Action by Laura Hymes against the General Accident, Fire & Life Assurance Corporation, Limited. Verdict for plaintiff, and defendant brings error. Affirmed.

Watts & Summers, of Wagoner, for defendant in error.

BAILEY J.

This action was brought in the district court of Wagoner county by the defendant in error as plaintiff, against plaintiff in error as defendant, to recover on a policy of accident insurance, issued by plaintiff in error, to one Charles Nave, and in which policy defendant in error, Laura Hymes, was named as beneficiary. The cause was tried to a jury resulting in a verdict in favor of defendant in error for the principle sum named in the policy, and from judgment rendered thereon plaintiff in error appeals. We will refer to the parties hereafter as they stood in the trial court.

The evidence in the case disclosed these facts: The insured, a negro, was attending a negro dance at the time he met his death. One Pompey Drew, another negro, was also there. During the course of the evening Nave and Drew were drinking, and that during the festivities one Spencer Luckey was held up at the point of a pistol by Drew and $15 was taken from Spencer by Drew. The evidence further discloses that Drew and Nave were friends and upon friendly terms and relations. Just after the holdup of Spencer, Nave appeared in the yard near Drew, inquiring: "Where is P. D.? He ain't no bad son of a bitch." Immediately thereafter, Drew fired upon Nave, inflicting a mortal wound, from which he died a few days later. Other evidence will be noted as may be necessary hereafter in the opinion.

The policy of insurance, which is purely one of accident and health, contains the provision, that-

"In the event of death resulting from the following causes, the corporation's liability shall be one month's indemnity, as provided in sections 2 and 5 of this policy: *** Injury intentionally inflicted upon the insured by any other person."

It was stipulated between the parties in the trial court that one month's indemnity, under this policy is $30, and that defendant had tendered this amount to plaintiff in full settlement of its liability and that such tender was made good at the trial. It is the contention of plaintiff in error that under the facts in the case, and the clause of the policy above quoted, its liability is limited to the one month's indemnity of $30, and that the court should have so instructed the jury.

After introducing the policy sued upon, plaintiff introduced the proofs of death furnished by defendant, in which proofs of death there was contained affidavits as to how the insured met his death, and in which affidavits there was contained the following questions and answers:

"Ques. Exactly what was the insured doing at the time? Ans. There was no quarrel between the deceased and guilty party, party who done the shooting was sentenced to life imprisonment.

Ques. Precisely how did the accident happen? Ans. Pompey Drew held up Spencer Luckey and took $15. Deceased, not knowing what was being done, stepped out the door, and Pompey Drew shot him, without any provocation whatever."

At the end of plaintiff's testimony in chief, defendant interposed a demurrer to the evidence of plaintiff, which demurrer was overruled by the court, and which action of the court, is assigned as error; it being the contention of plaintiff in error that these proofs of death established that the deceased was intentionally shot by Pompey Drew, and that therefore plaintiff was not entitled to recover other than one month's indemnity. It is true that proofs of death are prima facie evidence against plaintiff of the facts therein stated, but we do not think such proofs as here offered necessarily show an intention upon the part of Drew to shoot Nave, and, besides, counsel has failed to note that as a part of the plaintiff's evidence in chief, it was testified that at the instant of the shooting that Nave said, "O Lord!" and Drew said: "Did I shoot you, Charley? I did not know that was you I shot."

The proof, of loss, though prima facie true against the insured, are not conclusive nor irrebutable. Reserve Life Ins. Co. v. Isom, 173 P. 841; Hill v. AEtna Ins. Co., 150 N.C. 1, 63 S.E. 124.

Under numerous decisions of this court, when a demurrer to the evidence is interposed, the court cannot weigh conflicting evidence, but must treat that as withdrawn which is most favorable to the demurrant, and all the facts which the evidence in the slightest degree tends to prove, and all reasonable inferences or conclusions which may be logically and reasonably drawn from the evidence, are admitted. Rawlings v. Ufer, 161 P. 183; Bean v. Rumrill, 172 P. 453. We do not think the court committed any error in overruling defendant's demurrer to the evidence.

It is next assigned as error that the court erred in giving the following instruction:

"The jury are further instructed that the intent on the part of the said Pompey Drew, with which he inflicted the injuries upon the said Charles Nave from which said injuries the said Charles Nave died, is to be gathered from all the facts and circumstances proved in the case and the facts and circumstances surrounding the killing at the time. And in this case if you should believe that the said Pompey Drew shot at the said Charles Nave believing at the time that the said Charles Nave was some other person, and that the said Pompey Drew would not have shot and killed the said Charles Nave had he known that the person at whom he was shooting was Charles Nave, then in that event you are instructed that the injuries inflicted upon the said Charles Nave would not be intentional within the meaning of the policy,

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