Metropolitan Casualty Insurance Company v. Chambers

• Decision Date: 21 October 1918
• Docket Number: 186
• Parties: METROPOLITAN CASUALTY INSURANCE COMPANY v. CHAMBERS
• Court: Arkansas Supreme Court

206 S.W. 64

136 Ark. 84

METROPOLITAN CASUALTY INSURANCE COMPANY v. CHAMBERS

No. 186

Supreme Court of Arkansas

October 21, 1918

Appeal from Pulaski Circuit Court, Third Division; G. W. Hendricks Judge; affirmed.

Judgment affirmed.

Brown & Anderson, for appellant; T. W. Brown, of counsel.

1. A hypothetical question must be based upon evidence and include all facts in evidence necessary to enable the witness to give an opinion which will be of assistance to the jury. 17 Cyc 243, and cases cited.

2. The attendance of a witness may be compelled when necessary to the proper trial of a case. Kirby's Dig., § 3159.

3. A policy is avoided if the death or injury is caused by provoking an affray; and it is not necessary to avoid it that the person inflicting the injury should have acted with the circumspection which would be necessary to furnish him a legal defense to a prosecution for the assault. 54 Nat. Corp Rep. 502; 65 So. 852; 25 C. C. A. 494; 147 P. 1175; 108 N.E. 296; 77 S.E. 1072; 143 Ga. 758; 36 S.W. 169; 3 N.E. 818; 61 N.W. 485; 38 Mo.App. 460; 63 Id. 1; 109 Ky. 661; 91 N.W. 135; Chamberlayne on Ev., § 938; 147 P. 1175; 191 S.W. 998; 43 N.E. 405; 144 N.Y. 354.

4. The burden was on plaintiff. 193 S.W. 540; 1 Cyc. 296; 16 Id. 926; Kirby's Dig., § 3107; Wigmore, Ev. , § 2487; 68 Ark. 284; Chamberlayne on Ev., § 935; 4 Crawford's Dig. Ark. Rep. 261; 43 N.E. 405; 191 S.W. 998. He must establish that the injury was due to external and violent means but that it was accidental. Ib.

6. In the allowance of attorney's fees the amount should be reasonable. Kirby's Dig., § 3107; 68 Ark. 284; 4 Enc. Dig. Ark. Rep. 261.

7. Accidental killing must be proved. 80 Ark. 190; 128 Id. 155. See also 199 S.W. 108.

Troy Pace, for appellee.

1. Upon the facts the evidence is ample to sustain the verdict.

2. There was no error in refusing a continuance. The court's discretion was not abused. Evatt's testimony was cumulative only. The motion was not in statutory form and failed to set out the necessary facts.

3. The hypothetical questions were proper. 87 Ark. 243; 98 Id. 359; 203 S.W. 271.

4. The motion for a peremptory instruction was properly overruled. A prima facie case was made and the burden of proof was placed on defendant. 199 S.W. 108; 128 Ark. 155; 193 S.W. 540; 75 Wis. 116; 17 Am. St. 184; 9 A. & E. Ann. Cases, 919.

5. There is no error in the instructions. 126 Ark. 483; 191 S.W. 25; 198 Id. 278. See also 73 Ark. 187; 125 Id. 567; 6 Id. 494-5.

6. The attorney's fee was reasonable. 128 Ark. 155; 193 S.W. 540.

OPINION

HUMPHREYS, J.

Appellee instituted suit against appellant in the Third Division of the Pulaski Circuit Court on the 7th day of September, 1917, to recover $ 4,500 alleged to be due her under the terms of accident policy No. 233,703, issued by appellant to her husband, Chester A. Chambers, on the 19th day of October, 1914. Appellee was the beneficiary in the policy and the policy provided for the payment of $ 4,500 to her for bodily injuries sustained by her husband, Chester A. Chambers, directly, solely and exclusively through accidental means and resulting in the loss of his life. The policy was in force on the 7th day of May, 1917, at which time it was alleged that Chester A. Chambers sustained bodily injuries directly, solely and exclusively through accidental means near Harrison, Arkansas, from gunshot wounds inflicted by one H. P. Evatt, from the effects of which he instantly died.

Appellee filed answer, denying that Chester A. Chambers came to his death from accidental means, but charged that H. P. Evatt, in his own defense, shot and killed Chester A. Chambers during a quarrel initiated by the said Chambers at a time when the said Chambers was making a hostile demonstration against him with a pistol. The cause was submitted to a jury upon the pleadings, evidence and instructions of the court, upon which a verdict was returned against appellant for $ 4,500. By agreement, six per cent. was allowed from September 2, 1917, and judgment was rendered in favor of appellee for $ 4,617.75 for debt and interest; $ 540 by way of a twelve per cent. penalty upon the amount of the policy, and an attorney's fee for $ 750, making an aggregate judgment in favor of appellee in the sum of $ 5,907.75. From this judgment an appeal has been prosecuted to this court.

Appellant insists that the court erred in overruling a motion for continuance filed by it on the 4th day of February, 1918. Appellant, in its motion for continuance, sought to bring itself within section 3159 of Kirby's Digest, which is as follows:

"Where it is made to appear, by the affidavit of the party and the written statement of his attorney, that the testimony of a witness is important, and that the just and proper effect of his testimony can not, in a reasonable degree, be obtained without an oral examination before the jury, the court may, at its discretion, order the personal attendance of the witness to be compelled, although such witness may otherwise be exempt from personal attendance by law." The motion for continuance followed the language of this statute and requested a continuance until such time as the court could issue an order for the personal attendance of witness Evatt and until it could compel his attendance by attachment. This case originally stood for trial in October, 1917, at which time H. P. Evatt and the other witnesses were present, but Evatt claimed his constitutional exemption not to testify because it might tend to convict him on the charge of murder then pending against him in the Boone Circuit Court for killing Chester A. Chambers. The cause was continued until the 4th day of February, 1918, and Evatt, who was in attendance at that time in obedience to a subpoena served upon him in Boone County, was ordered to return for the trial on February 4 following. Evatt was acquitted of the murder charge and immediately removed from the State of Arkansas to the State of Wyoming and was in the latter State when this motion for continuance was filed. It was not shown when or whether Evatt intended to return to the State of Arkansas. We do not think the statute invoked by appellant as ground for continuance was ever intended to operate on a witness permanently out of the jurisdiction of the court. The statute itself provided that such an order might be issued in the discretion of the presiding judge. The court certainly did not abuse its discretion in refusing to grant the request without a showing that the witness would return to the jurisdiction of the court within a reasonable time. No insistence is made that prejudice resulted because appellant had no opportunity to take the deposition of this absent witness. In fact, his evidence taken in the trial on the criminal charge in Boone County was used as his deposition in this trial by offer of appellee and acceptance of appellant. The uncertainty as to the time when such an order, as requested, could be issued and enforced justified the court in denying a continuance.

It is also insisted by appellant that the uncontradicted evidence showed that Chester A. Chambers was shot and killed by H. P. Evatt in necessary self-defense. The only three eye witnesses testified, in substance, as follows: That they, in company with Chester A. Chambers, left Harrison during the afternoon of the 7th day of May, 1917, in Chester A. Chambers' automobile for Capps, a few miles north of Harrison, where Chester A. Chambers was going to adjust a loss occasioned by the burning of a school house at that place; that Chambers was drinking and was abusive toward and about H. P. Evatt; that Chambers had a large 38 caliber pistol in his grip; that when the last stop was made to take a drink, Chambers, who was sitting in the middle of the back seat in the automobile, came up with the pistol pointing it at Evatt; that Oscar Hudgins had just stepped out of the car and that George Crump, who was sitting on the front seat by Evatt, looked around and exclaimed "My God, don't do that;" that Evatt immediately fired three shots at Chambers and killed him. According to the evidence of Evatt, the shooting occurred as follows: "The first thing that attracted my attention was little George saying 'My God, don't do that--jump.' I looked around. Mr. Chambers had the pistol in his hand holding it at me; I thought he was drunk, and that he was going to shoot me. I grabbed for mine and fired across my shoulder with my left hand. I am left handed. I got out of the car some way--I don't know how. I don't know whether all the shots were fired while I was in the car. I was laboring under considerable excitement at the time. I shot to save my life--I thought he was going to kill me. I don't know how rapidly I fired those shots."

Crump testified that he grabbed either the pistol or Chambers' arm, he did not know which, and attempted to push it out and up. Further, the testimony showed that the body fell in the right corner of the back seat with the head resting against the breast and that they agreed to bring the body back to Harrison; that Crump got in the back seat and attempted to support the body, and when they attempted to start the car it was found that the gearing had been stripped; that they then gave up bringing the body to town in that car and, later, Crump got in a car that was coming along and went to town to inform the officers of the killing, leaving Hudgins and Evatt at the place of the killing.

When the sheriff and physician and their party arrived, Mr. Evatt Mr. Hudgins and Mr. White were near the car. The sheriff gave the following testimony with reference to the situation as he found it upon his arrival. "The body was in the car, on the back seat; right about the right-hand end of the seat with the hands...