Home Beneficial Life Ins. Co. v. Partain, 145

• Decision Date: 24 June 1954
• Docket Number: No. 145,145
• Citation: 106 A.2d 79,205 Md. 60
• Parties: HOME BENEFICIAL LIFE INS. CO., Inc. v. PARTAIN.
• Court: Maryland Court of Appeals

Page 60

205 Md. 60

106 A.2d 79

HOME BENEFICIAL LIFE INS. CO., Inc. v. PARTAIN.

No. 145.

Court of Appeals of Maryland.

June 24, 1954.

John O. Herrmann and Jacob S. New, Baltimore, for appellant.

Philander B. Briscoe, Baltimore (Briscoe & Jones, Baltimore, on the brief), for appellee.

Before BRUNE, C. J., and DELAPLAINE, COLLINS, HENDERSON and HAMMOND, JJ.

BRUNE, Chief Judge.

This is an appeal from a judgment rendered upon the verdict of a jury in favor of the plaintiff (appellee) as beneficiary under a policy of accident insurance issued to her husband, Ernest E. Partain, the insured, by the defendant (appellant) insurance company (referred to below as the 'Company'). The pertinent provisions of the policy are that '[The Company] insures the person designated as the Insured * * * and subject to all provisions of this Policy, Will Pay to the Beneficiary * * * the principal sum [$1,000] * * * upon receipt of due proof of the death of the Insured * * * as a result of * * * bodily injury effected solely by violent, external and accidental means * * *.

* * *

* * *

'3. Exclusions. This policy does not cover loss of life, or limb, or eyesight, which results * * * from any violation of law by the Insured or violence intentionally inflicted, by another person * * *.'

There was another policy involved in the case issued by the same insurance company upon the life of the same insured and payable to the same beneficiary. This was a policy of life insurance in the principal sum of $500, with a 'double indemnity' provision in case of accidental death. The Company conceded liability for the principal sum, but denied liability under the double indemnity provision. The court directed a verdict in its favor on that claim, and the beneficiary did not appeal. There are differences between the language in the exclusion clause of the accident policy and that in the corresponding clause of the accidental death benefit in the life insurance policy. For ready comparison and reference, the pertinent provisions are set forth here:

'Accidental Death Benefit. If the Insured, * * *, sustains bodily injury, solely through external, violent and accidental means, resulting directly and independently of all other causes, in the death of the Insured * * * the Company * * * will pay * * * an Accidental Death Benefit equal to the amount of insurance which would otherwise be payable under this Policy, Provided, however, that no additional benefit shall be payable if the death of the Insured * * * is caused or contributed to, directly or indirectly, or wholly or partially by * * * any violation of law by the Insured or violence intentionally inflicted by another person * * *.'

The insured met his death as a result of an altercation and scuffle with one Brashear, which occurred in October, 1952. Most of the testimony as to what occurred comes from Brashear. The insured, Partain, who lived in one part of Baltimore, went to another part of the city to collect a debt which he claimed was due him from Brashear. Partain found Brashear in a tavern near the latter's home. Brashear was drinking beer at the rear of the bar when Partain approached him and demanded payment of the debt and cursed him loudly. Brashear denied owing the debt and sought to avoid trouble by leaving the tavern through a side or rear door, which led to an alley behind the tavern. Brashear's house was on the other side of the alley. Partain followed Brashear into the alley, with a glass of beer in his hand. Partain set the beer down and grabbed Brashear by the collar and a scuffle ensued. Brashear broke away from Partain and tried to get to the gate opening into the yard at the back of his home. Partain and Brashear grappled again in the alley, and Brashear pushed him away. Partain went backward, fell and hit his head on a stone at the corner of a building on the opposite side of the alley. A few hours later he died from the injury sustained when his head hit this stone.

The only other witness to testify about the scuffle in the alley was one Bode, who said that there was some water in a gutter in the middle of the alley, that the men were scuffling there and that he thought Partain slipped in the water in the gutter.

Partain was larger than Brashear and outweighed him by about thirty pounds. Though Partain had been swinging his arms in an apparent effort to hit Brashear, the testimony indicates that no blows actually hit Brashear. It also indicates that Brashear scuffled with Partain and pushed him away, but that he did not strike him.

The trial court instructed the jury that the conduct of Partain in going after Brashear and laying his hands on him and attempting to hit him was a violation of the law, that this conduct on Partain's part was the direct cause of the fight and the indirect cause of his death, and that the plaintiff could not recover the double indemnity under the life policy.

With regard to the accident policy, the trial court in giving his charge called attention to the difference in language between the life and accident policies, and stated that neither a violation of the law by Partain nor any violation of law involved in the push was the immediate cause, or the direct, proximate cause, of Partain's death, and that the proximate cause of his death was the contact of his head with the stone. The court instructed the jury 'that if you determine that the death of Mr. Partain was caused immediately by his striking his head on the stone as the result of the push and the fall, and that the blow on the head was not intended by Mr. Brashear your verdict should be for the plaintiff under the accident policy.'

There was no testimony to show such an intention on Brashear's part. The trial court also instructed the jury that whether or not the insured slipped in the water (as testified by Bode) made no difference. The verdict was in favor of the plaintiff and the defendant's motion for judgment n.o.v. was denied.

The appellant raises three questions: (1) Did the death of the insured result from bodily injury effected solely by accidental means; (2) Did it result from any violation of law by the insured; and (3) Did it result from violence intentionally inflicted by another person?

These questions, though stated separately, are so closely related that they tend to overlap.

In this case there is no room for doubt that the death of the insured was not expected by either participant in the scuffle; and consequently the death itself was accidental. John Hancock Mutual Life Ins. Co. v. Plummer 181 Md. 140, 28 A.2d 856, 857. But here, as in that case, the insurance was not against accidental death, but against death by accidental means; and, as was said in the Plummer case, 'the distinction between accidental external means and accidental result has been generally recognized and applied.' This Court cited Landress v. Phoenix Mutual Life Insurance Co., 291 U.S. 491, 54 S.Ct. 461, 78 L.Ed. 934, and said: 'We adopt the majority view that a means is not made accidental, within the terms of a policy providing for double indemnity in case of death resulting from bodily injury caused solely by external, violent and accidental means, merely because death results unexpectedly, where the means consists of a voluntary and intentional act occurring in the usual manner.'

Here, the insured was the aggressor and the person attacked apparently sought to get out of the fight or scuffle with a minimum of bodily harm to either participant.

There are a number of cases in other jurisdictions which are closer to this case on their facts than the Plummer case and the Landress case, above cited, and which apply the distinction between accidental result and accidental means. Among them are: Borneman v. John Hancock Mutual Life Ins. Co., 289 N.Y. 295, 45 N.E.2d 452 (turning primarily on intentional violence); Gray v. Western States Life Insurance Co., 214 Cal. 695, 8 P.2d 126; Harrison v. Prudential Ins. Co. of America, 54 Ohio App. 279, 6 N.E.2d 991; McNamara v. Metropolitan Life Ins. Co., 133 N.J.L. 48, 42 A.2d 464, affirmed 134 N.J.L. 231, 46 A.2d 798 (limited and partially distinguished in Shields v. Prudential Ins. Co., 6 N.J. 517, 79 A.2d 297, 26 A.L.R.2d 392); Fidelity & Casualty Co. of New York v. Stacey's Ex'rs, 4 Cir., 143 F. 271, 5 L.R.A., N.S., 657. For a comprehensive collection of cases dealing with the whole subject, see the Annotation in 26 A.L.R.2d 399, and particularly pages 427-431 for cases of the general type here involved.

The rule which we deem applicable and in accord with the Plummer case is well expressed in the Harrison case above cited as follows [54 Ohio App. 279, 6 N.E.2d 993]: 'Counsel for appellant contends that while the insured decedent might have anticipated physical injury, he would not...