Masons' Fraternal Acc. Ass'n v. Riley
| Decision Date | 30 April 1898 |
| Citation | 45 S.W. 684 |
| Parties | MASONS' FRATERNAL ACC. ASS'N v. RILEY. |
| Court | Arkansas Supreme Court |
Appeal from circuit court, Jefferson county; John M. Elliott, Judge.
Action by W. Riley, administrator of J. H. Culpepper, deceased, against the Masons' Fraternal Accident Association. From a judgment for plaintiff, defendant appeals. Reversed.
A. E. Ewing, Irving Reinberger, and N. T. White, for appellant. Austin & Taylor, for appellee.
This action was instituted by W. Riley, as administrator of J. H. Culpepper, deceased, against the Masons' Fraternal Accident Association, and is based on the obligation of the association, called a certificate whereby it constituted J. H. Culpepper one of its certificate holders, and agreed to pay to his executors or administrators the sum of $5,000 in the event he should die from bodily injury caused by external, violent, and accidental means, within 90 days after the accident so causing it, upon condition, however, this sum was not to be paid unless the amount "realized by the association from one assessment of two dollars, made and assessed upon all assessable holders of certificates assessable at the date of the accident," should be equal to such sum, and, in the event it should not, the sum so realized should be paid, and nothing more; and it was provided in the obligation that the association would not agree or be liable to pay any sum of money on account of death resulting wholly or partly, directly of indirectly, from injuries intentionally inflicted upon Culpepper by himself or any other person.
Plaintiff, among other things, alleged that Culpepper was accidentally killed on the 10th of October, 1892; that, at the time of the accident, "there were more than twenty-five hundred of assessable certificates of the defendant association liable to assessment for the purpose of accumulating a fund to an amount sufficient to pay the plaintiff and the beneficiaries in said policy the said sum of $5,000"; and that no part of the $5,000 has been paid.
The defendant answered "that it is provided in the contract sued on that its liability should not cover death resulting wholly or partly, directly or indirectly, from injuries intentionally inflicted upon the insured by himself or any other person, and that the insured had come to his death wholly and directly from injuries intentionally inflicted upon him by one Israel Stewart.
"That by the terms of the contract defendant is not liable to pay, nor plaintiff entitled to receive, a greater sum than might be realized by defendant, not, however, exceeding $5,000, from one assessment, of not exceeding $2, levied upon each and all assessable holders of its assessable certificates at the time of the insured's death; and that defendant denies that the sum of $5,000, or any other sum, was or could be raised by one such assessment."
E. D. Culpepper testified: He was the father of J. H. Culpepper. He last saw his son alive between 11 and 12 o'clock a. m., on the 10th of October, 1892. He, the son, was on horseback, on the Boyd place, immediately opposite Pine Bluff, on the Arkansas river. He next saw his son, J. H. Culpepper, 20 or 30 minutes later, lying dead, face downward, on the ground, near the residence on the Boyd place, then occupied by Israel Stewart, with gunshot wounds on his body, extending from lower part of shoulder blades to back of his head, behind the ears. Shortly before this he (witness) heard the report of a gun. At this time he was 80 or 90 yards from the residence. As soon as he could walk in the gate, some five or six steps, he saw the head of Stewart extended beyond the doorcase, looking out the door, but could not see any other portion of his body. He saw no one else. His son's body then lay about 20 steps from Stewart. The defendant offered to prove by the witness that his son and Stewart had previously disagreed and disputed about some mules, and the court would not permit it to do so, and it excepted.
J. L. Goree testified that he examined the body of J. H. Culpepper after he was dead, and that he died from wounds inflicted with a gun by some one other than the deceased; that the wounds ranged upward, and indicated that they were inflicted while deceased was leaning forward.
The defendant, having proved that Israel Stewart died before the trial in this action, offered to prove by A. J. Stewart what Israel Stewart said to him about the killing in a conversation which occurred on the day after Culpepper was shot, and the court refused to admit the testimony.
It also offered to prove by J. T. Murdaugh that Israel Stewart walked across the bridge over the river at Pine Bluff, with a gun on his shoulder, and, delivering to him his gun, and saying, "I am your prisoner," surrendered, and witness took him and confined him in jail. At this time Stewart was very much affected and fatigued, and told witness that J. H. Culpepper had abused and attacked him, and upon resistance fled, and he (Stewart) shot him with a shotgun and killed him while he was retreating. And the court refused to admit the testimony.
The defendant offered to prove the same thing by H. King White, and that it occurred on the 10th of October, 1892, about 30 minutes after the killing, and that he heard Stewart testify in a trial for killing Culpepper, and that he testified to the same thing he related, as before stated; and the court excluded the testimony.
Defendant also offered in evidence the records of the circuit court of Jefferson county, Ark., showing that at its September term, 1892, Israel Stewart was indicted for the murder of J. H. Culpepper in said county, on October...
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