Harper's Adm'r v. Phoenix Ins. Co.

• Decision Date: 31 March 1854
• Citation: 19 Mo. 506
• Parties: HARPER'S ADMINISTRATOR, Plaintiffs in Error, v. THE PHOENIX INSURANCE CO., Defendant in Error.
• Court: Missouri Supreme Court

19 Mo. 506

HARPER'S ADMINISTRATOR, Plaintiffs in Error,

v.THE PHOENIX INSURANCE CO., Defendant in Error.

Supreme Court of Missouri.

March Term, 1854.

1. A life policy contained a condition, by which it was avoided if the assured should die in the known violation of a law of the state. Held that under this clause, the policy would not be avoided, if the assured was killed after retreating from an altercation which he had commenced, under circumstances which would make the slayer guilty of felonious homicide.

Error to St. Louis Court of Common Pleas.

S. M. Breckenridge, (with whom Glover & Richardson were associated,) for plaintiffs in error.

The facts stated in the agreed case do not support the judgment. It clearly appears that Harper when killed, had thrown away his pistol, and retreated from the combat. He was not then engaged in the violation of any law. It is true that he held “a billet of wood over his head in a threatening position.” But there was no attempt to execute the threat, and if there had been, Coryell was in a position which afforded him entire security. He could have had no such reasonable apprehension of danger, as justified him in taking life. It may be said that Harper's death occurred in consequence of his own act in commencing the quarrel, and he was therefore constructively violating the law at the time of his death. It is a settled rule in the construction of policies, that words used in them shall be taken most strongly against the insurer. It is submitted that this construction requires the defendant to show that Harper's death was the direct result of a violation of law--that he was acting in violation of law at the moment of his death--and not merely that his death was the remote result of some prior violation of law. Many deaths may, and doubtless do occur, which result remotely from some long prior violation of some one of our laws. For illustration A. keeps an unlicensed dram-shop, which B. enters, and after drinking, becomes intoxicated, and without provocation kills A. Would such a case afford a good defense to a policy similar to the one in question? The fact that Coryell killed Harper under an apprehension of danger, although it might palliate his guilt or even justify him, in a prosecution against him, cannot avail the defendant in this action, if there was, in fact, no danger. If A. presents a gun, which he knows to be empty, and threatens to shoot B., who supposes the gun to be loaded, B. may be justifiable in killing A.; but A.'s act would hardly avoid a policy upon his life similar to the one under consideration.

Barton Bates and T. B. Hudson, for defendant in error.

The issue to be tried was, whether Harper died in the known violation of the law. The case agreed, it is submitted, shows that he did so die. Harper commenced the assault, and there having been no intermission in the conflict, he was still violating the law when he was killed. At the very moment he received the fatal shot, he was in the act of assaulting Coryell. It is fair to assume, that the breaches of law which should avoid the policy were intended to be such as enhanced the risk assumed by the company. If the violation of law did not, in any way, endanger life, it would hardly be considered within the meaning of the policy. But where, as in this case, the violation of law was such as tended directly and immediately to enhance the risk, it should certainly have the effect to avoid the policy, according to its express words. Harper's death was occasioned by his own assault upon Coryell, and it matters not what Coryell's guilt or innocence may be.

SCOTT, Judge delivered the opinion of the court.

Edmund Harper, on the 17th of December, 1849, took from the Phœnix Insurance Company a policy of insurance on his life, for the term of five years, for three thousand dollars. The policy was subject to the following conditions: “That if the said Harper shall die in consequence of a duel, or by the hands of justice, or in the known violation of any law of this state, then, in such case, the policy shall be void.”

This is an action on the policy by the plaintiff, Woodyard, who is the administrator of Harper.

The answer sets up the defense that Harper died in the known violation of a law of this state, in committing an assault upon one Coryell, whereby the policy was avoided; that Harper, just before his death, assaulted Coryell with a pistol, and attempted to shoot him, who, in resisting said attempt, and in defense of his life, shot and immediately killed Harper.

The trial of the cause was submitted to the court without a jury, and the facts were agreed as follows: On the 6th day of February, 1850, and in the year, within the time for which the life of said Edmund Harper was insured, one Coryell was talking to a man named Wilson, standing about forty paces from B. Harper's store, where the said Edmund Harper, the deceased, then was. The deceased spoke to the said Wilson, and asked him if he knew to whom he was speaking, and admonished him to keep his hand on his pocket. Coryell then approached the deceased, and inquired if that insult was intended for him. The deceased replied that it was. The parties quarrelled, the deceased drew a pistol with a single barrel, and snapped it at Coryell, who, thereupon, drew a revolver and advanced upon the deceased, standing on the sill of B. Harper's store door, who threw his pistol, which had missed fire, and struck Coryell. The deceased then stepped into the store of B. Harper, and said Coryell, standing in the door of said store, with his revolver, shot at and missed said deceased, who was inside the store, and eight or ten feet from the door. The deceased then retreated precipitately behind an off-set formed by a...