Interstate Business Men's Acc. Ass'n v. Dunn

• Decision Date: 04 December 1917
• Citation: 178 Ky. 193,198 S.W. 727
• Parties: INTERSTATE BUSINESS MEN'S ACCIDENT ASS'N v. DUNN. [a1]
• Court: Kentucky Court of Appeals

198 S.W. 727

178 Ky. 193

INTERSTATE BUSINESS MEN'S ACCIDENT ASS'N v. DUNN. ^[a1]

Court of Appeals of Kentucky.

December 4, 1917

Appeal from Circuit Court, Henderson County.

Action by Mary S. Dunn against the Interstate Business Men's Accident Association. Judgment for plaintiff, and defendant appeals. Affirmed.

R. M Haines and Dunshee, Haines & Brody, all of Des Moines, Iowa and Yeaman & Yeaman, of Henderson, for appellant.

Henson & Taylor, of Henderson, for appellee.

CARROLL J.

In April, 1916, the appellant association issued to Dr. M. C Dunn a certificate of membership, in which it agreed, in the event of the death of the insured "from bodily injuries effected solely and independently of all other causes or conditions concurring, contributing, or intervening, through external, violent, and accidental means," to pay his wife, the beneficiary named in the policy, the sum of $5,000. In the schedule of injuries for which compensation would be paid, and the amount thereof, we find, for example, these among others:

"For loss of both eyes, $5,000; for loss of either hand, $1,250; for loss of either eye, $1,250; for loss of life, $5,000."

It will thus be seen that, unless the company was exempt from liability by other provisions in the policy, it was obliged by the clauses we have set forth to pay to the beneficiary, in the event of the death of the insured, the sum stipulated, as it is agreed that his death came within the protective features of the policy. In another part of the policy there is a paragraph exempting the company from liability in certain described states of case, and this paragraph reads, in part:

"This certificate shall be in suspension, and the insurance herein provided shall not extend to or cover any loss due to * * * the act of any person done to injure the insured."

After the death of Dr. Dunn, in a suit by the appellee beneficiary to recover from the association $5,000, and after the association had filed its answer denying liability, the case was submitted upon the following agreed statement of facts:

"(1) The policy upon which this suit commenced was in full force and effect at the time of the injury and death of Dr. M. C. Dunn.

(2) The plaintiff is the beneficiary named in the policy, and as such has done and performed the conditions preliminary to maturing her claim.

(3) Dr. M. C. Dunn was intentionally shot and murdered by one Charles M. Wyne at Henderson, Ky. on August 10, 1916, and the said shooting and killing of the said Dr. M. C. Dunn by the said Charles M. Wyne was not done in any affray or mutual encounter, nor brought on or caused by any demonstration, threat, or menace by the said Dunn; but the said Dunn at said time was unarmed and attempting to escape from the said Charles M. Wyne, and said attack upon the said Dr. M. C. Dunn at said time was wholly unprovoked, unexpected, and unforeseen upon the part of the said Dunn, and the said Charles M. Wyne at said time shot the said Dr. M. C. Dunn with the fixed purpose and intention to kill the said Dr. M. C. Dunn.

(4) Plaintiff is entitled to a judgment for $5,000, with interest and costs, unless the court shall hold as a matter of law that the company is not liable for a death so occurring by reason of the following provisions of paragraph 6 of part E, to wit: 'This certificate shall be in suspension and the insurance herein provided shall not extend to or cover any loss due to the act of any person done to injure the insured or another, or to cause the insured or another to desist from doing any lawful act, whether the person be irresponsible by reason of any form or degree of mental derangement or any other cause; disability or death resulting from an injury produced by the discharge of a firearm, unless the claimant shall establish the accidental cause of the discharge by the testimony of a person other than the insured or the claimant, who actually saw the accidental cause in operation.' "

On this statement of facts and the contract of insurance the lower court entered a judgment in favor of Mrs. Dunn for $5,000 with interest, and the association appeals.

It will be seen from the stipulation of facts and the terms of the policy that the only point of disagreement between the parties to this litigation falls within a very narrow compass; counsel for the association contending that, as Dr. Dunn was intentionally shot and killed, the association is relieved from liability by so much of paragraph 6 of part E as provides that the insurance "shall not extend to or cover any loss due to the act of any person done to injure the insured." In other words the argument is that the word "injure" includes the word "kill," and that this exemption clause should be so construed as to read that the insurance "shall not extend to or cover any loss due to the act of any person done to injure or kill the insured"; while counsel for Mrs. Dunn insist that the clause relied on by the association exempts it from liability only in respect to injury, and not death, intentionally inflicted by another person. It is plain that, if the policy had not contained this exemption clause, there could be no question raised as to the liability of the association; and this is conceded. And so we repeat, the only point in controversy is: Does the word "injure," in the connection in which it was used in this exemption clause, cover and include the word "death"? If it does, the judgment should be reversed; otherwise, it should be affirmed.

Just why there was not inserted in this part of the exemption clause now under consideration the words "to kill," after the words "to injure," we do not of course know; but we do know that the insertion of the words "to kill" would have made plain a provision that without these words is involved in some doubt and probably susceptible of two interpretations. But it cannot be assumed that the omission of these words was by inadvertence or mistake, because insurance companies, in writing policies of insurance do not omit or insert words by mistake or inadvertence. When an important word, or a word that would affect the meaning of a policy, is either inserted or omitted, it is safe to assume that the insurance company had good reason for the omission or the insertion. It will be seen that in the last clause of paragraph 6 the words "disability or death" are used, the effect of which is that the policy does not cover any loss due to "disability or death...