Masons' Fraternal Accident Association v. Riley

• Decision Date: 30 April 1898
• Citation: 45 S.W. 684,65 Ark. 261
• Parties: MASONS' FRATERNAL ACCIDENT ASSOCIATION v. RILEY
• Court: Arkansas Supreme Court

45 S.W. 684

65 Ark. 261

MASONS' FRATERNAL ACCIDENT ASSOCIATION v. RILEY

Supreme Court of Arkansas

April 30, 1898

APPEAL from Jefferson Circuit Court, JOHN M. ELLIOTT, Judge.

Cause remanded for new trial.

Irving Reinberger and N. T. White, for apellants.

The proper proceeding, under the terms of the policy, would be a suit in equity for specific performance of the contract to make an assessment for the payment of the policy. 24 F. 685; 114 Ill. 108; 72 Ia. 191; 50 Mo. 29. If an action at law were proper upon such a contract, the complaint fails to state facts sufficient to constitute a cause of action, because (1) It fails to allege a breach of the covenant to make the assessment, etc. 3 Enc. Pl. & Pr. 653; 5 ib. 369, 370; 3 ib 655; 5 ib. 376; 60 Cal. 341; Bacon, Ben. Soc. § 453, and cases; 94 Mo. 35; 89 Cal. 599; 48 Conn. 98; 20 Ill.App. 595; 24 F. 685. (2) It fails to recite with particularity the ultimate facts relied upon as tending to prove that the shooting was accidental. 4 Nnc. Pl. & Pr. 605. In the inquiry as to whether death was accidental or designed, facts apparently collateral become relevant if they tend to show motive in any one for the act. Jones, Evidence, §§ 138, 142. So with any circumstance tending to strengthen or weaken either of these theories. 42 Ark. 542; Jones, Ev §§ 138, 142; 32 S.W. 31. Acts and declarations which are explanatory of a transaction, and which take place either at the time of the main event, so as to emanate directly from the state of mind which induced the main event or which take place subsequently, but under circumstances which show them not to be premeditated or concocted, are admissible in evidence as part of the res gestae. 43 Ark. 99; 1 Taylor, Ev. (7 Ed.) § 588; 48 Ark. 338; Whart. Evid. § 258-267; 116 Ind. 566; 43 Ark. 293; Jones Ev. § 351; 8 Wall. b01; 2 Bing. 99; 32 S.W. 31; 2 Dill. (U.S.) 154; 85 Ga. 751; 61 Ill.App. 140; 2 Cinn. S.Ct. 98; S. C. 4 Bigelow, L. & A. Rep. 366; 4c S.W. 910; Starkie, Evid. 47; 24 Pick. 244, 245. Declarations against interest of declarant are admissible. Jones, Ev. § 327; 5 Am. & Eng. Enc. Law, 36; Steph. Ev. art. 28. Confessions of guilt are presumed to be true. Starkie, Evid. (9 Am. Ed.) 744. It is relevant to put in evidence any circumstance which tends to make the proposition at issue more or less reasonable, or which tends to show motive, where it is material. Whart. Ev. § 21; Steph. Ev. art. 1; ib. 7; ib. 12; Jones, Ev. § 141-2; 147 U.S. 150; 11 Pa.St. 307. It was also error for the court to refuse to allow appellant to prove testimony of the slayer of insured, given on his trial for the killing, because the appellee and his cestui que trust were privy in law to the state in the prosecution. 1 Greenl. Ev. § 164; 14 Ind.App. 611; 81 Ga. 668. The letter of appelant, replying to notification of death of insured, should have been admitted. 15 Am. & Eng. Enc. Law, 684. The first instruction given for appellee is erroneous, because it makes appellant liable for the natural death of insured, when its contract of insurance was against accidental death only. 87 Ky. 300; 38 Mo.App. 385. It was error for the court to tell the jury that they were not allowed to indulge any presumption as to whether deceased was murdered or not. The presumption of crime or violence was one of fact, and the jury was entitled to consider all facts and circumstances introduced in evidence, in arriving at their conclusion. 1 Ph. Ev. (C. & H. notes,) p. 598; 1 Greenl. Ev. (14 Ed.) § 14; Best's Ev. (Am. Ed.) § 303; 127 U.S. 667; 34 S.W. 801. Fraud may be established by indirect evidence. 15 Tex. 219; 64 Ala. 525; 5 B. Mon. 43; 51 Ill. 327; 48 Ill. 323; 49 id. 62; 25 Mich. 367; 47 Tex. 138; 6 Mo.App. 6. Death by intentional homicide is not to be regarded as incidental. 30 S.W. 879; 80 F. 368, 12 N.Y. 472. It was also error to instruct the jury that the measure of damages was the maximum amount named in the certificate. The contract of the insurer was to pay as much (not exceeding a certain limit) as should be raised by assessment on the members at a certain rate. This was the measure of their liability, if they were liable. 24 F. 685; 68 Md. 465; 64 N.H. 291; 11 N.Y.S. 462; 55 Hun, 574; 46 Hun, 426; 51 Hun, 495; 29 N.Y.S. 421; Sand. & H. Dig., §§ 5761, 5782; 4 Ark. 534; 2 N.Y.S. 481. Appellee's proof actually established appellant's defense of death by intentional homicide hence the court should not have allowed a recovery by appellee. 57 Ark. 461; Bliss, Life Ins. § 259; 41 S.W. 9; 30 ib. 879; 127 U.S. 667; 38 Mo.App. 385; 77 Cal. 246; 15 Col. 351; 98 Mich. 338; 63 N.W. 276.

OPINION

BATTLE, J.

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 five thousand dollars in the event he should die from bodily injury caused by external, violent, and accidental means, within ninety days after the accident so causing it, upon condition, however, that this sum was 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 that the association would not agree or be liable to pay any sum of money on account of death resulting, wholly or partly, directly or 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 five thousand dollars;" and that no part of the five thousand dollars 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, twenty or thirty 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 eighty or ninety 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 door case, 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 twenty 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 upwards, and indicated that they were inflicted while deceased was leaning forward.

The defendant, having proved that Israel Stewart died before 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 thirty 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, Arkansas, showing that at its September...