Great Southern Life Ins. Co. v. Churchwell

• Citation: 216 P. 676,91 Okla. 157,28 A.L.R. 97,1923 OK 418
• Decision Date: 26 June 1923
• Docket Number: 11581.
• Parties: GREAT SOUTHERN LIFE INS. CO. ET AL. v. CHURCHWELL.
• Court: Supreme Court of Oklahoma

216 P. 676

91 Okla. 157, 28 A.L.R. 97, 1923 OK 418

GREAT SOUTHERN LIFE INS. CO. ET AL. v. CHURCHWELL.

No. 11581.

Supreme Court of Oklahoma

June 26, 1923

Syllabus by the Court.

If the language of a life or accident policy does not express an exception, when fairly interpreted, the courts will not write an exception into it by interpretation, for the purpose of exempting the insurer from liability after death or accident.

If a policy is so drawn as to require interpretation and to be fairly susceptible of two different constructions, the one will be adopted that is most favorable to the insured.

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.

If an accident policy contains no provision excepting such hazards and by chance, without the design, consent, or co-operation of the insured, he is injured or killed as a result of a hazard incident to his occupation, his injury or death properly may be said to have been caused by accidental means.

Though the means whereby a personal injury or death is caused were put into operation with the design or intention of injuring or killing one or more persons, if chance determines what particular person or persons are injured or killed in consequence of the use of those means, as to a person so injured or killed without his fault, consent, or co-operation, such means are to be regarded as accidental.

The death of an insured caused by being struck by a bullet fired by the enemy, while he is engaged in battle, and while serving under draft in the army of the United States as a soldier against Germany, held to have resulted from bodily injury sustained and effected directly through external, violent, and accidental means, within the terms of the policy.

Commissioners' Opinion, Division No. 5.

Appeal from District Court, Jackson County; Frank Mathews, Judge.

Action by L. B. Churchwell against the Great Southern Life Insurance Company and another. From a judgment for plaintiff defendants appeal. Affirmed.

Embry Johnson & Tolbert, of Oklahoma City, for plaintiffs in error.

S. B Garrett, of Mangum, for defendant in error.

THOMPSON C.

This was an action by the defendant in error, the beneficiary named in a policy issued February 7, 1917, whereby the plaintiff in error the Oklahoma National Life Insurance Company insured the life of Omar Churchwell in the sum of $1,000, and the plaintiff in error Great Southern Life Insurance Company reinsured and underwrote the policy under the laws of the state of Texas and the state of Oklahoma, on the 31st day of July, 1918. Under the policy the plaintiffs in error obligated themselves by the following provision contained in the policy:

"Upon receipt of due proof of the death of the insured resulting directly, independently, and exclusively of any and all other causes from bodily injuries effected solely through external, violent, and purely accidental means (homicide or self-destruction, sane or insane, not included), and occurring within 20 days after such injuries, the amount payable upon surrender for cancellation and in full satisfaction of this policy shall be $2,000."

The death of the insured having occurred, the insurer, after receipt by it of the prescribed notice of the death, offered to pay $1,000, which the beneficiary was willing to accept without prejudice to her claim, asserted in this action, of the right to recover an additional $1,000 under the above-quoted "double indemnity" provision of the policy.

The claim asserted in the petition was duly resisted by the plaintiffs in error, and by agreement of parties the cause was tried to the court without the intervention of a jury, upon an agreed statement of facts and contentions of the parties, which was signed by the attorneys for the respective parties and submitted to the court for its decision, as follows:

"Agreed Statement of Facts.

It is stipulated and agreed by and between the plaintiff, L. B. Churchwell, and the defendants, the Oklahoma National Life Insurance Company and Great Southern Life Insurance Company, that the facts proven and established in this case and admitted by all parties to be proved and established are as follows:

(1) On the 7th day of February, 1917, Omar Churchwell was insurable age and in health, and that on said date the defendant the Oklahoma National Life Insurance Company, for value, issued and delivered to said Omar Churchwell its life insurance policy No. 11553, for the sum of $1,000, payable in favor of L. B. Churchwell, plaintiff in this action, mother of said insured, the beneficiary, the said sum to be due and payable to said L. B. Churchwell upon the death of said insured and due proof thereof. A substantial copy of said policy is attached to plaintiff's petition and marked 'Exhibit A'; the said policy having therein the following contractual agreement:

'The Oklahoma National Life Insurance Company, a stock company of Oklahoma City, U.S. A. subject to the terms and provisions hereinafter contained, will pay $1,000, the face of this policy, upon receipts of due proofs of the death of Omar Churchwell, the insured, to L. B. Churchwell (mother), beneficiary, or during the premium period of this policy and before the insured shall have attained the age of 60 years and before default in the payment of any renewal premium.

Double Indemnity.

Upon receipt of due proof of the death of the insured resulting directly, independently, and exclusively of any and all other causes from bodily injuries effected solely through external, violent, and purely accidental means (homicide or self-destruction, sane or insane, not included), and occurring within 20 days after such injuries, the amount payable upon surrender for cancellation and in full satisfaction of this policy shall be $2,000.'

(2) That the defendant Great Southern Life Insurance Company, in conformity with the laws of the state of Texas and of the state of Oklahoma, for value, reinsured and underwrote the said policy No. 11553 by its policy No. 48584, a substantial copy of which is attached to plaintiff's petition marked 'Exhibit B,' in which are the following provisions:

'Assumption of Policy.

'Omar Churchwell, Altus, Okl. The Great Southern Life Insurance Company hereby reinsures and assumes all liability under policy 11553 issued by the Oklahoma National Life Insurance Company, of Oklahoma City, Okl., provided same was in force at midnight on the 31st day of July, 1918. This done in conformity with reinsurance contract between Great Southern Life Insurance Company and the Oklahoma National Life Insurance Company, of date July 19, 1918, filed with and approved by the insurance departments of Oklahoma and Texas and certified by them as fully protecting the interest of all the policy holders of the Oklahoma National Life Insurance Company, of Oklahoma City, Okl.' And said reinsurance contract dated and signed 31st of July, 1918.

(3) It is admitted and agreed that each of the foregoing policies were in full force and effect, fully paid up, on the 25th and the 27th days of October, 1918, and each of the said policies, with all their provisions, are made a part of this statement of facts as fully as if the same were herein set out in full.

(4) At the date of the issuance of said policy, and during the year 1917, Omar Churchwell, the insured, was between the ages of 21 and 31 years. That he was a citizen of the United States, single, and subject to the Draft Act of Congress, passed in 1917 (U. S. Comp. St. 1918, U.S. Comp. St. Ann. Supp. 1919, §§ 2044a-2044k), after the United States had declared war against the German Empire and was in a state of war with Germany. That on the ______ day of ______, 1917, Omar Churchwell was, under the Selective Draft Act, drafted by the government of the United States into the army of defense and into the army service of the United States. That he was duly enrolled and sworn and placed into the service as a soldier. That on the 25th day of October, 1918, said Omar Churchwell was a member of and a corporal in Company M, 357th Infantry, of the Expeditionary Forces of the United States in France. That on said 25th day of October, 1918, and while so engaged in the military service of the United States in France, and while acting in the line of his duty as such soldier and under the orders and directions of his superior officers, and while under fire from the enemy, the said Omar Churchwell received bullet wound from the enemy guns in the shoulder, back, chest, and body, which wound was serious and fatal, and from the injury and wound so received the said Omar Churchwell did die on the 27th day of October, 1918. That said injury was the sole cause of the death of the said Omar Churchwell; the said bullet wound so received by him being fatal.

(5) The proper proof of death of the said Omar Churchwell was furnished defendants, as required by the terms of the policy, and acknowledged and accepted by defendants prior to bringing this action.

(6) Defendants acknowledge liability under the terms of the policies sued on in the sum of $1,000, with such accruals thereon as provided by the terms of the policy.

(7) Defendants deny liability for double indemnity for the reason they allege that, under the foregoing statement of facts, the death of Omar Churchwell, the insured, was not death resulting directly, independently, and exclusively of any and all other causes from bodily injuries effected solely through external, violent, and purely accidental means, as is claimed by plaintiff in her petition, and for the further reason that insured's death was the result of homicide.

(8) The issue before the court then between the plaintiff and the

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