Meister v. General Accident, Fire & Assurance Corp., Limited, of Perth, Scotland

• Decision Date: 15 April 1919
• Citation: 179 P. 913,92 Or. 96
• Parties: MEISTER v. GENERAL ACCIDENT, FIRE & ASSURANCE CORPORATION, LIMITED, OF PERTH, SCOTLAND.
• Court: Oregon Supreme Court

179 P. 913

92 Or. 96

MEISTER v. GENERAL ACCIDENT, FIRE & ASSURANCE CORPORATION, LIMITED, OF PERTH, SCOTLAND.

Supreme Court of Oregon

April 15, 1919

Department 1.

Appeal from Circuit Court, Multnomah County; W. N. Gatens, Judge.

Action by Ursula Meister against the General Accident, Fire &amp Assurance Corporation, Limited, of Perth, Scotland. From judgment of nonsuit, plaintiff appeals. Affirmed.

This is an action wherein the plaintiff seeks to recover upon an accident insurance policy for the death of her husband, who was shot and killed by one Emil Spranger. The sole issue developed by the pleadings is as to whether the death was caused by accident. The complaint upon this subject follows the language of the contract of insurance, and reads thus:

"That the said Henry Meister, deceased, met with his death on March 4, 1917, and that said death was caused directly solely, and independently of all other causes, by external violent, and accidental means, and was not caused wholly or in part, directly or indirectly, by any disease, defect, or infirmity on the part of said Henry Meister, deceased, nor was said death caused through suicide."

The answer denies this allegation, and pleads affirmatively that at the time of the homicide the plaintiff and her husband and Spranger were all residents of the same apartment house; that on that day the deceased, in a fit of anger, went to the basement and procured a gun with which he proceeded to Spranger's apartment, where, with the pistol in his hand he assaulted Spranger, who drew a gun and shot Meister causing his death. It is then alleged that Meister's death was the natural and probable consequence of his assault upon Spranger, and was not the result of any accident. This is denied in the reply. A trial being had, at the close of plaintiff's case, defendant moved for a judgment of nonsuit, which was granted, and plaintiff appeals.

C. T. Haas, of Portland, for appellant.

R. W. Wilbur, of Portland (Wilbur, Spencer & Beckett, of Portland, on the brief), for respondent.

BENSON, J. (after stating the facts as above).

The contention of appellant is that there is evidence in the record which would justify the submission of the case to the jury upon the issue as to whether or not the death was accidental. The evidence is brief, consisting of the testimony of the plaintiff herself and the policy of insurance. The plaintiff testified simply that the deceased was her husband; that on March 4, 1917, Spranger shot him with a revolver; that he died from the wound so inflicted, and that she is the beneficiary named in the contract of insurance; that on the afternoon of the day when the shooting occurred she and her husband had been playing cards with Spranger in his apartment; that they later adjourned to Meister's apartment, where they had dinner, or a lunch; that thereafter Meister said that he must attend some sort of a meeting, and went away; that Mrs. Meister and Spranger then returned to his apartment and resumed the card playing; that at about 9:30 p. m. Meister returned, and knocked at Spranger's door, which was opened by Mrs. Meister, who found her husband in a mood so angry that he struck her, and then proceeded to the basement, where he procured a pistol, and, with it in his hand, went to Spranger's apartment, and assaulted the latter, who in the scuffle which ensued shot and killed Meister. Spranger had not, prior to the affray, displayed any weapon, and the evidence does not disclose any knowledge upon the part of Meister that Spranger was armed. This is practically all of the evidence. Does this evidence make a case sufficient to go to the jury upon the question as to whether or not the death was caused by accidental means? We have been unable to find any case in which this court has answered the query. The authorities in other jurisdictions are conflicting. In the case of Fidelity & Casualty Co. of New York v. Stacey's Ex'rs, 143 F. 271, 74 C. C. A. 409, 5 L. R. A. (N. S.) 657, 6 Ann. Cas. 955, the policy insured the deceased "against disability or death resulting directly, and independently of all other causes, from bodily injuries sustained through external, violent, and accidental means (suicide, sane or insane, not included)." The insured engaged in a heated discussion with another man, who called him a liar, whereupon he struck the man two blows in the face, one with each fist, and in so doing he received a cut or abrasion of the skin upon his knuckle. Blood poisoning ensued, and in a few weeks he died from its effects. The United States Circuit Court of Appeals, speaking by Judge Pritchard, says:

"It thus appears that the insured, at a time when he was in full possession of his mental faculties, accosted Porter and engaged in a controversy in consequence of which he committed an assault on the body of Porter, evidently for the purpose of punishing him for what had just occurred between them. Everything connected with the transaction clearly indicates that the insured intended to do exactly what he did on that occasion. Therefore the injury which he received at the time was the natural and logical result of an intentional act on his part. He was a man of intelligence, and it must be presumed that he knew that in making an assault with his fist in the manner described he would probably

sustain more or less injury to himself."

Consequently it was held that the trial court should have directed a verdict for the defendant.

Hutton v. States Accident Insurance Co., 267 Ill. 267, 108 N.E. 296, L. R. A. 1915E, 127, Ann. Cas. 1916C, 577, was a case in which the plaintiff saw a man with whom he had had a dispute sitting on a stool at a lunch counter. Without saying a word, he walked up behind the man and struck him a blow on the side of the head, intending, as he says, "to hit him so hard that he wouldn't get up and begin it all over." The other man, however, knocked the plaintiff down, and in some manner his leg was broken. The Supreme...