Mello v. John Hancock Mut. Life Ins. Co.

• Decision Date: 30 November 1932
• Citation: 183 N.E. 255,281 Mass. 190
• Parties: DE MELLO v. JOHN HANCOCK MUT. LIFE INS. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

281 Mass. 190

183 N.E. 255

DE MELLO

v.JOHN HANCOCK MUT. LIFE INS. CO.

Supreme Judicial Court of Massachusetts, Bristol.

Nov. 30, 1932.

Report from Superior Court, Bristol County; Joseph Walsh, Judge.

Action by Laura De Mello against the John Hancock Mutual Life Insurance Company. Finding for defendant. On report.

Judgment for defendant in accordance with terms of report.

Minkin & Rusitzky, of New Bedford, for plaintiff.

Cook, Brownell & Taber, of New Bedford, for defendant.

CROSBY, J.

This is an action to recover upon two policies of insurance issued by the defendant upon the life of Jose De Mello, the husband of the plaintiff, in each of which she was named as beneficiary. The second policy contained the following additional insurance: ‘Accidental Death Benefit Provisions. Upon receipt of due proof that the Insured after attainment of age 15 and prior to the attainment of age 70, has sustained bodily injury, solely through external, violent and accidental means, occurring after the date of this Policy and resulting in the death of the Insured within ninety days from the date of such bodily injury while this Policy is in force, and while there is no default in the payment of premium, the Company will pay in addition to any other sums due under this Policy and subject to the provisions of this Policy an Accidental Death Benefit equal to the face amount of insurance stated in this Policy less the amount of any disability benefit which has become payable under this Policy on account of the same bodily injury, except as provided below. * * *’ The same provision was incorporated in the first policy after it was issued.

The case is submitted on an agreed statement of facts. It is recited therein that the policies were in force and the premiums had been paid at the time the death of the insured, which occurred within a few hours after the bodily injuries resulting in death had been received. He was then twenty-nine years of age. Proof of death has been made to the defendant, and it has paid to the plaintiff the face amount of each policy, but it refuses to pay a like amount provided for under the provisions covering accidental death.

It is agreed as follows: The deceased was a fisherman for a number of years and at the time of his death was a member of the crew of a boat called the ‘Lassgehn,’ but he had no control in the navigation of the boat. Shortly after midnight of September 5, 1931, a Coast Guard picket boat, displaying the pendant and an ensign prescribed by Rev. Sts. § 2765, U. S. Code, title 14, § 68 (14 USCA § 68), fired two warning shots from a rapid fire gun at the Lassgehn, and then fired a machine gun at its hull. The Lassgehn hauled to, and the insured was found inside the boat where he had been shot and mortally wounded by a machine gun bullet. The Lassgehn had sacks of liquor aboard which it was attempting to smuggle in violation of the federal law. The Coast Guard did not intend to kill or wound the insured, and the machine gun shots were fired at the hull of the boat to disable it and cause it ‘to be hauled to.’ The death of the insured occurred under circumstances not covered by any of the exceptions set forth in the policies.

The plaintiff's first, second, third, eighth and ninth requests were given. The others were refused. The defendant's six requests were given, the fourth being as follows: ‘The insured having at the time of his injury and death been engaged in a violation of the law of the United States and there having been a direct causal connection between such violation and the injury and death of the insured, the plaintiff cannot recover.’

The question presented for decision is whether or not the insured ‘sustained bodily injury, solely through external, violent and accidental means * * * resulting in * * * [his] death,’ within the meaning of the policy. The insured at the time of his death was acting in violation of a statute of the United States (Act of Congress of October 28, 1919, c. 85, title 2, § 26, 41 U. S. Sts. at Large, 315 [27 USCA § 40]) which provides that ‘When the commissioner * * * or any officer of the law shall discover any person in the act of transporting in violation of the law, intoxicating liquors in any * * * water * * * it shall be his duty to seize any and all intoxicating liquors found therein being transported contrary to law. Whenever intoxicating liquors transported or possessed illegally shall be seized by an officer he shall take possession of the * * * water craft * * * and shall arrest any person in charge thereof. * * *’

It is provided by Act of Congress of September 21, 1922, c. 356, title 4, part 5, § 581, 42 U. S. Sts. at Large, 979 (19 USCA § 481), that ‘officers of the customs or of the Coast Guard, and agents or other persons authorized by the Secretary of the Treasury, or appointed for that purpose in writing by a collector may at any time go on board of any vessel or vehicle at any place in the United States or within four leagues of the coast of the United States, without as well as within their respective districts, to examine the manifest and to inspect, search, and examine the vessel or vehicle, and every part thereof, and any person, trunk, or package on board, and to this end to hail and stop such vessel or vehicle, if under way, and use all necessary force to compel compliance, and if it shall appear that any breach or violation of the laws of the United States has been committed, whereby or in consequence of which such vessel or vehicle, or the merchandise, or any part thereof, on board of or imported by such vessel or vehicle is liable to forfeiture, it shall be the duty of such officer to make seizure of the same, and to arrest, or, in case of escape or attempted escape, to pursue and arrest any person engaged in such breach or violation.’

U. S. Rev. Sts. § 2765, U. S. Code, title 14, § 68 (14 USCA § 68), reads: ‘Whenever any vessel liable to seizure or examination does not bring-to, on being...