Kennedy v. Aetna Life Ins. Co.
| Citation | 90 N.E. 292,242 Ill. 396 |
| Parties | KENNEDY et al. v. AETNA LIFE INS. CO. |
| Decision Date | 22 December 1909 |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Appellate Court, First District, on Appeal from Circuit Court, Cook County; M. W. Pinckney, Judge.
Action by Henry H. Kennedy and another, executors of James A. Fullenwider, deceased, against the AEtna Life Insurance Company. From a judgment of the Appellate Court affirming a judgment for plaintiffs, defendant appeals. Affirmed.
Flannery & McKinley, for appellant.
Joseph W. Moses, for appellees.
This is an action in assumpsit brought in the circuit court of Cook county to recover a death claim under a policy of accident insurance issued by appellant to James A. Fullenwider, appellees' testator. The cause was tried upon a declaration as amended, consisting of three counts; the first alleging that Fullenwider came to his death through external, violent, and accidental means, to wit, by bullet wounds inflicted by certain persons who had assaulted him for the sole purpose of robbery. The third count contained substantially the same allegations, so far as any question here in dispute is involved. The second count alleged that Fullenwider sustained the injury solely through external, violent, and accidental means, being struck by a bullet accidentally discharged from a revolver held by some person other than Fullenwider. On issues being joined, a trial resulted in a verdict of $5,832.85, the full amount recoverable under the policy, with interest. On appeal to the Appellate Court that judgment was affirmed, and this appeal followed.
The policy was for $5,000, issued subject to the following conditions: (1) That the insured shall ‘sustain bodily injuries solely through external, violent and accidental means,’ etc. (2) ‘If such injuries alone cause the death of the insured * * * the principal sum shall be payable to the beneficiary,’ etc. (15) ‘In the event of death * * * due to injuries intentionally inflicted upon the insuredby any other person (except assaults committed for the sole purpose of burglary or robbery), * * * the limit of this company's liability shall be one-tenth the amount otherwise payable,’ etc.
The evidence in the record shows, without contradiction, that on the evening of December 2, 1903, about 7 o'clock, while walking in a public street of Chicago in the vicinity of Forty-First street and Wabash avenue, Fullenwider was shot. Two witnesses swore they saw the shooting. Mrs. Grace Doyle McGuire testified for appellees: That in December, 1903, she lived on Forty-Sixth street near Wabash avenue, and on the evening of the shooting was walking from her home north on Wabash avenue to her mother's house at No. 4130 Wabash avenue. That upon arriving there she saw persons standing on Forty-First street, and walked on until she came to a lamp-post in front of a frame cottage just south of the corner. That she then saw two men holding Fullenwider as if they were wrestling with him. That she heard Fullenwider say ‘Oh!’ or ‘No.!’ and at the same time break away from them and run south. That just as he was breaking away and turning one of the men shot him. That she saw something shining in the hand of the man who did the shooting. That it looked like a revolver. That after the shot one of the two men ran northeast and the other northwest, and Fullenwider ran south in the street shouting: That she went back to her mother's house to get help and was standing on the porch when Fullenwider ran past the house. That just after that she saw a man cross over and assist Fullenwider to Forty-Second street.
Thomas Lowry testified for appellant, in substance: That he was walking south on the west side of Wabash avenue to his room on Forty-Second street and saw two men, whom he described as roughly dressed and disreputable looking, standing near one of the pillars under the South Side elevatedrailroad, which crosses Wabash avenue at Fortieth street; that one of the men walked out towards him, and Lowry, becoming suspicious, was about to turn back, but seeing a policeman coming down Fortieth street he changed his mind and continued south on the west side of Wabash avenue; that the two men followed about 75 feet behind him until he passed Forty-First street; that when he was about 100 feet south of the latter street he heard loud talking, and turning around saw the two men and the insured standing on the southwest corner of Forty-First street and Wabash avenue; that the two men were four or five feet apart, and Fullenwider was standing between them, and was starting to run when the man nearest him shot him in the back; that the two men then ran, one northeast and the other northwest; that Fullenwider hallooed for help and ran south on the west side of the street; that witness went north to meet him and assisted him to Forty-Second street, where they met Dr. Jipson, who took the injured man to the hospital. This witness testified that he saw no one on the west side of the street between Forty-First and Forty-Second streets except Fullenwider, until he met Dr. Jipson at the corner of Forty-Second. When he met Fullenwider he noticed the latter wore a scarf pin and watch chain.
The testimony shows: That Fullenwider was a lawyer, with offices in the downtown district; that he was married and lived with his family at 472 Forty-Second street, a residence district; that between five and six in the evening of the day he was shot he left his office for home, going first to a flat building which he owned at 4031 State street to superintend some repairs, and left this building within an hour of the time he started from his office. It also tends to show that he had walked in the direction of his home south to Forty-First street and east on that street to Wabash avenue when he was halted by two men. Fullenwider died at the hospital the next day as a result of the bullet wound. So far as this record shows, his assailants are unknown and have never been apprehended.
At the close of appellees' evidence, and again at the close of all the evidence, appellant offered a motion in writing requesting the court to give to the jury a peremptory instruction to find the issues for the appellees and to assess their damages at $500, with interest at 5 per cent. from February 1, 1904. These motions were both denied.
It is insisted by appellant that there is no evidence fairly tending to establish an assault for the sole purpose of robbery, or that the bullet which inflicted the mortal wound on Fullenwider was accidentally discharged, and that therefore the instruction requested in said motions should have been given. It is conceded by counsel for appellant that if the evidence introduced was legally sufficient, under any one of the counts in the declaration, to warrant returning a verdict for more than the amount requested by the motion and instruction in question, then the rulings of the court refusing to so instruct were correct. As we understand their argument, they seem to insist, however, that the court should in some way have refused to submit to the jury the case upon all these three counts, as they contend that the allegations set out in the first and third...
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