McCrary v. New York Life Ins. Co.

• Decision Date: 10 July 1936
• Docket Number: 10534.,No. 10533,10533
• Citation: 84 F.2d 790
• Parties: McCRARY v. NEW YORK LIFE INS. CO. NEW YORK LIFE INS. CO. v. McCRARY.
• Court: U.S. Court of Appeals — Eighth Circuit

84 F.2d 790 (1936)

McCRARY v. NEW YORK LIFE INS. CO.

NEW YORK LIFE INS. CO. v. McCRARY.

Nos. 10533, 10534.

Circuit Court of Appeals, Eighth Circuit.

July 10, 1936.

W. L. Dwyer, of Plattsmouth, Neb. (D. O. Dwyer, of Plattsmouth, Neb., on the brief), for Erma V. McCrary.

David A. Fitch, of Omaha, Neb. (Norris Brown and Ralph M. West, both of Omaha, Neb., on the brief), for New York Life Ins. Co.

Before GARDNER and SANBORN, Circuit Judges, and NORDBYE, District Judge.

GARDNER, Circuit Judge.

There are here two appeals from a judgment entered in an action to recover on a policy of life insurance. Appellant Erma V. McCrary, the beneficiary named in the policy, plaintiff below, has appealed from the judgment because it denied her the right to recover on the double indemnity provision for accidental death of the insured. Appellant New York Life Insurance Company, defendant below, has appealed from that part of the judgment as entered, which allowed interest on the principal amount recovered, and costs, and an attorney fee under the Nebraska statute. Section 44-346, C.S.1929.

We shall refer to the parties as they were designated below. The plaintiff's appeal will first be considered.

The policy insured the life of William Douglas McCrary, son of plaintiff, for $2,000, with a provision for double that amount "upon receipt of due proof that the death of said insured resulted directly and independently of all other causes from bodily injury effected solely through external, violent and accidental cause. * * *" The policy also provided: "This double indemnity benefit will not apply if the insured's death resulted * * * from any violation of law by the insured. * * *" Defendant did not deny liability for the face amount of the policy, less the amount of an outstanding loan, but contested plaintiff's right to recover under the double indemnity clause.

The facts preceding and attending the death of the insured are not in dispute, and, so far as here pertinent, they may be summarized as follows: On March 6, 1934, at about 10 or 11 o'clock at night, Joe G. McMaken returned to his home from West Point, Neb., where he had gone to procure a gravel contract. He heard voices of two people talking in his home. He had been informed that the insured was visiting his wife, and, suspecting that he was there with her, he went into the basement where he stayed "quite some time," the exact period he did not know. He had a shotgun in the basement belonging to another party. After staying in the basement for some time, he took the shotgun and climbed through the basement window and thence entered the kitchen, and from there went into the living room which adjoined the bedroom where he and his wife usually slept. He heard the regular breathing of two people asleep. He sat in a chair near the door of the living room, just outside the bedroom, until 4:30 or 5 o'clock in the morning. There was an alarm clock ticking in the bedroom, and fearing that it would go off and awaken the sleepers he made an effort to get to it to shut off the alarm, when he made a noise. He heard a rustling, as if some one was getting up in bed, and turned the light on. He saw the insured sitting in bed with his wife. The insured reached for something and then rolled off the bed, taking the covers with him, and McMaken shot him three times. Dr. L. S. Pucelik was called by McMaken, and on examination found the insured in a dying condition with a gunshot wound in the leg, a second in the left chest, and a third in his head. McMaken stated to the doctor and a policeman that he shot the insured the third time "to put him out of his misery." The insured died within about 15 minutes after the doctor arrived, and within about an hour after he was shot. The policeman found a revolver in the pocket of the overcoat of the insured, which was hanging over the foot of the bed in which he was sleeping, after the coat had been removed to the police station.

At the close of the testimony, defendant moved for a directed verdict in favor of plaintiff for the face amount of the policy, less the loan, and for no other amount. This motion was granted, except that the court allowed interest, costs, and attorney fees. This ruling of the court is challenged by plaintiff, and, so far as her appeal is concerned, it is the only question requiring consideration.

Two questions must be considered on plaintiff's appeal: (1) Did the death of the insured result from bodily injury effected through accidental cause; and (2) was the death of the insured the result of any violation of law on his part.

1. The Nebraska statute defining and fixing the punishment for the crime of adultery is as follows: "If any married woman shall hereafter commit adultery or desert her husband and live and cohabit with another man, or if any married man shall hereafter commit adultery, or desert his wife and live and cohabit with another woman, or if any married man living with his wife shall keep any other woman and wantonly cohabit with her, or if any unmarried man shall live and cohabit or have sexual intercourse with a married woman, every person so offending shall upon conviction thereof be imprisoned in the county jail of the county, not exceeding one year." Section 28-902, Comp.Stat.Neb.1929.

Insured's presence at the home of McMaken was not accidental, but intentional and by design. The return of the husband and the consequent shooting were, so far as insured and Mrs. McMaken were concerned, doubtless unexpected and fortuitous. The word "accidental" is defined and explained by the Supreme Court in U.S. Mutual Accident Ass'n v. Barry, 131 U.S. 100, 9 S.Ct. 755, 762, 33 L.Ed. 60, in the following language: "The court properly instructed them * * * that the term `accidental' was used in the policy in its ordinary, popular sense, as meaning `happening by chance, unexpectedly taking place, not according to the usual course of things, or not as expected;' that if a result is such as follows from ordinary means, voluntarily employed, in a not unusual or unexpected way, it cannot be called a result effected by accidental means; but that if, in the act which precedes the injury, something unforeseen, unexpected, unusual, occurs which produces the injury, then the injury has resulted through accidental means."

To render the defendant liable for double indemnity, the cause of the injury must have been accidental. The result of what is voluntarily done, although unforeseen, unlooked for, unexpected, or disappointing, does not make the cause accidental. Shanberg v. Fidelity & Casualty Co. (C.C.A.8) 158 F. 1, 19 L.R.A. (N.S.) 1206; Landress v. Phœnix Mutual Life Ins. Co., 291 U.S. 491, 54 S.Ct. 461, 78 L.Ed. 934, 90 A.L.R. 1382; Lincoln Nat. Life Ins. Co. v. Erickson (C.C.A.8) 42 F.(2d) 997; Connecticut General Life Ins. Co. v. Allen (C.C. A.8) 64 F.(2d) 840; Pope v. Prudential Ins. Co. (C.C.A.6) 29 F.(2d) 185, 186. In the last-cited case it is said: "There is obviously a substantial distinction between an accidental result and the result of an accidental cause."

Placing one's self in a place or condition where physical harm may result does not necessarily deprive a resulting injury of having an accidental cause. In New York Life Ins. Co. v. Gustafson (C.C.A.3) 55 F. (2d) 236, 82 A.L.R. 729, the insured was killed by a blow which he received while lawfully engaged in a boxing match. In State Life Ins. Co. v. Allison (C.C.A.5) 269 F. 93, 14 A.L.R. 412, the insured, a soldier, was killed in battle by the explosion of a shell. In Interstate Business Men's Acc. Ass'n v. Lester (C.C.A.8) 257 F. 225, 230, the insured, a medical officer in the Colorado National Guard, was killed by a bullet while he was performing his duty with a detachment detailed to preserve order during a strike. In each of these cases, the insured was held to have received his injuries through accidental means or cause.

In Interstate Business Men's Acc. Ass'n v. Lester, supra, the court succinctly pointed out the line of demarcation as follows: "The line of distinction is this: If the party does something which culpably provokes or induces the act causing his injury or death, then the result is not accidental; but, if he is wholly free from culpability himself, the result is accidental as to him, though it may have been within the deliberate intent of the aggressor."

This distinction is recognized and observed in most of the adjudicated cases. An insured who meets death in an affray in which he was the aggressor cannot ordinarily be said to have suffered his injuries as the result of an accident, for he must be held to have foreseen the result of his wrongful acts Taliaferro v. Travelers' Protective Ass'n (C.C.A.8) 80 F. 368; or must have known or anticipated the result Occidental Life Ins. Co. v. Holcomb (C.C.A.5) 10 F. (2d) 125; Isoard v. Mut. Life Ins. Co. (C. C.A.8) 22 F.(2d) 956; or must have known by common observation and experience that he would receive an injury Fidelity & Casualty Co. v. Stacey's Ex'rs (C.C.A.4) 143 F. 271, 5 L.R.A. (N.S.) 657, 6 Ann.Cas. 955. The injury cannot be said to be accidental if the insured brought it on himself by assaulting another. Prudential Life Ins. Co. v. Overby's Adm'x, 251 Ky. 750, 65 S.W.(2d) 1006; Hutton v. States Accident Ins. Co., 267 Ill. 267, 108 N.E. 296, L.R.A. 1915E, 127, Ann.Cas.1916C, 577; Meister v. Gen. Accident Corp., 92 Or. 96, 179 P. 913, 4 A.L.R. 718; Barham v. State Life Ins. Co., 17 La.App. 253, 135 So. 730.

If one is shot and killed while committing a robbery, his death is not caused by accident, as it must have been foreseen that death might result from participation in the crime. McGuire v. Metropolitan Life Ins. Co., 164 Tenn. 32, 46 S.W.(2d) 53; Price v. Business Men's Assur. Co., 188 Ark. 637, 67 S.W.(2d) 186.

In DeMello v. John Hancock Mut. Life Ins. Co., 281 Mass. 190, 183 N.E. 255, 256, the insured was working aboard a boat which was attempting to smuggle liquor in...