Harper's Adm'r v. Phœnix Ins. Co.

• Decision Date: 31 March 1853
• Citation: 18 Mo. 109
• Parties: HARPER'S ADMINISTRATOR, Plaintiff in Error, v. THE PHŒNIX INSURANCE COMPANY, Defendant in Error.
• Court: Missouri Supreme Court

18 Mo. 109

HARPER'S ADMINISTRATOR, Plaintiff in Error,

v.THE PHŒNIX INSURANCE COMPANY, Defendant in Error.

Supreme Court of Missouri.

March Term, 1853.

1. A policy of life insurance contained a clause by which it was avoided, if the assured should die in the known violation of a law of the state. It was held that, under this clause, the policy would not be avoided, if the assured was killed in an altercation, under circumstances which would make the slayer guilty of manslaughter. To avoid the policy, the killing must have been justifiable or excusable homicide.

2. What constitutes a killing in self-defence, is a question of law.

Error to St. Louis Court of Common Pleas.

Glover & Richardson and S. M. Breckenridge, for plaintiff in error.

The burden of proof was on the defendant to show that Harper died in the known violation of a law of this state. The question is not, whether Coryell was justifiable or excusable in killing Harper, under the circumstances given in evidence. A man may be killed when he is doing nothing wrong and is not intending to do any thing wrong, but when an apprehension that he is, is falsely made upon the mind of his assailant. But the naked question under this policy is, whether Harper was actually violating the law of this state, at the time of his death. The evidence shows that, at the time of his death, Harper had no pistol in his possession, and had retreated from the conflict when he was killed. If Coryell's guilt or innocence is in question, the evidence shows that he was guilty of felonious homicide. (Roscoe's Crim. Ev. Philad. ed. 1840, side pages, 640, 670; 1 East P. C. 239; 1 Hale P. C. 457; R. C. 1845, p. 344; 6 Mo. 241.)

E. & B. Bates and T. B. Hudson, for defendants in error.

I. The evidence supports the finding of the court below, and the finding supports the judgment. This court will not, therefore, reverse. (Givin v. Cody, 15 Mo. 277; ib. 278; Fine v. Rogers, ib. 320.) The finding of a court will be treated with as much consideration as the verdict of a jury.

II. The policy is avoided, if Harper's death was the direct consequence of his having violated the law of the state, in assaulting Coryell, whatever may have been Coryell's guilt. The fact that Harper afterwards retreated from the conflict makes no difference, if it were true, but the evidence shows that he had not retired from the conflict.

SCOTT, Judge, delivered the opinion of the court.

This was an action on a life policy. One of the conditions of the policy was, that, should Harper die in the known violation of a law of this state, then it should be void. The case was submitted to the court without a jury, and after hearing a great deal of evidence in relation to the manner by which...