Osborne v. People's Benev. Industrial Life Ins. Co. of Louisiana

• Decision Date: 16 February 1932
• Docket Number: 4151
• Parties: OSBORNE v. PEOPLE'S BENEV. INDUSTRIAL LIFE INS. CO. OF LOUISIANA
• Court: Court of Appeal of Louisiana — District of US

139 So. 733

19 La.App. 667

OSBORNE v. PEOPLE'S BENEV. INDUSTRIAL LIFE INS. CO. OF LOUISIANA

No. 4151

Court of Appeals of Louisiana, Second Circuit, First Division

February 16, 1932

Rehearing Refused March 16, 1932.

Appeal from the Ninth Judicial District Court, Parish of Rapides. Hon. Leven L. Hooe, Judge.

Action by Mathew Osborne against the People's Benevolent Industrial Life Insurance Company of Louisiana.

There was judgment for defendant, and plaintiff appealed.

Judgment affirmed.

Leo Gold, of Alexandria, attorney for plaintiff, appellant.

Lee J Novo and G. Purnell Whittington, of Alexandria, attorneys for defendant, appellee.

OPINION

CULPEPPER J.

Plaintiff sued to recover under an insurance policy covering life sick, and accident insurance combined, issued to plaintiff by the defendant company, of date June 21, 1920. From a judgment rejecting plaintiff's demands, he has appealed.

It is alleged by plaintiff that the premiums on the policy had been kept paid, and that none were due at the time of the alleged accidental injury, which occurred on September 28, 1929, for which indemnity under the accidental indemnity clause therein is claimed.

Defendant in answer denies the allegation that all premiums were paid up at the date the injury is alleged to have occurred, denies that the injury complained of was accidental, but avers that same was caused to be inflicted upon plaintiff by reason of acts of his own which acts constituted violations of the laws of the state of Louisiana, and which constituted a violation of the conditions and covenants contained in paragraph 6 of the policy of insurance, which reads as follows:

"Neither shall it (the insurer) be liable for death or injury received while in the commission of, or as punishment for, some act in violation of any law, nor for injury, sickness or death resulting from the malicious or unlawful act or the culpable or intentional negligence of any beneficiary hereunder."

Defendant also filed an exception of no right or cause of action, which appears to have been overruled by the court. We assume the exception has been abandoned, since same is not being urged before this court.

Plaintiff brought proceedings by rule to take judgment on the face of the pleadings, after answer was filed, which upon trial of same was also denied. Plaintiff's counsel has announced in brief filed that the rule has been abandoned due to the fact that defendant in its answer denied the allegation of payment of premiums. However, plaintiff now points out that upon the trial there was no evidence produced by defendant to show plaintiff had failed in keeping up payment of premiums, and that, by an examination of the answer, particularly paragraph 3 thereof, it will show, in view of the lack of evidence of non-payment of premiums that a legal defense was not set up and judgment should now be rendered for plaintiff for that reason without considering the case on the merits.

As we understand counsel, he now contends that, since no evidence was adduced upon the trial of the case to show non-payment of premiums on the policy, the defense fails for want of proof; that therefore the only remaining defense to the action is the defense, which counsel contends is a special one, that plaintiff's injuries were due to and resulted from his own acts of violations of the law; and, that, taking the averments contained in paragraph three of the answer to be true, defendant's version of the incident, in connection with the infliction by Henry Hovell of the injuries complained of, negatives the contention that same were not accidental. While the paragraph in question is a lengthy recital of the incidents leading up to and which took place at the moment plaintiff was shot and injured by Hovell, we do not think the recitals are such as to amount to a waiver of the special defense. A portion of the averments are that plaintiff went to Hovell's store for the express purpose of cursing, abusing, and doing Hovell harm and injury, all of which, it is averred, was in violation of the law; that upon arrival at the store, plaintiff cursed Hovell, walked around the counter where Hovell was standing, approached him with his right hand in his bosom and left hand in his pocket; that, as he approached Hovell, he undertook to draw a pistol from his bosom cursing Hovell and saying as he did so that he was going to kill him, and, as thus approaching Hovell, Hovell reached under his counter, secured a pistol, and shot plaintiff in defense of his own life. It is further averred that plaintiff was the aggressor and brought on the difficulty; that Hovell was at the time engaged in the peaceful pursuit of his own affairs in his own place of business.

While it is true, as able counsel in his lengthy and well-written brief points out, that our courts have held (citing Quatray v. Wicker et al., 16 La.App. 515, 134 So. 313) that evidence of a conviction or acquittal for the same occurrence giving rise to a civil action is not admissible in the civil action, yet we think that, where the allegations and proof set forth and show that the party seeking damages in a civil action arising out of acts of a criminal nature was the aggressor, as has been alleged, and we think abundantly proven in this case, it will corroborate the contention that plaintiff was engaged in committing acts in violation of the law at the time he was injured.

The paragraph contains the following language:

"That plaintiff walked round the counter where the said Henry Hovell was standing and approached him with his right hand in his shirt bosom and left hand in his pocket. That as plaintiff approached the said Henry Hovell he undertook to draw a pistol from his bosom, saying as he did so, 'you dirty s--- of a b---, I am going to kill you tonight,' and as he approached said Henry Hovell in the manner above set forth and undertook to draw said pistol for the purpose of killing the said Henry Hovell, the said Henry Hovell reached under the counter, drew a pistol and in defense of his own life * * * shot at plaintiff."

It is contended by plaintiff that this does not set forth acts in violation of any law; that under the terms of the policy, in order to show a legal defense against recovery for an alleged accidental injury, it must be averred in the answer that at the moment the injury was inflicted plaintiff was actually engaged in the commission of an unlawful act, counsel citing numerous authorities. We have examined most of these authorities and they appear to show counsel's contention to be the correct principle of the law on the subject. Counsel contends that defendant has not averred acts on the part of plaintiff at the moment of the infliction of the injuries, such as to constitute a violation of any law; and therefore it is urged that, in view of the fact that objections were urged upon the trial of the case to the introduction of any and all testimony in support of the averments as made, the objections should now be sustained and the testimony in that connection disregarded.

In that connection, as we view the reasons for the objections, they were that such testimony, under counsel's theory of the case, would be enlarging the pleadings.

To determine whether plaintiff's acts at the time he was injured constituted acts in violation of law, according to the language of the policy, "the commission of * * * some act in violation of any law," it will be necessary to refer to the definitions of some of the crimes or misdemeanors given in the statutes or by the law-writers on the subject.

Under section 797 of the Revised Statutes of Louisiana, it is a violation of the law for one person to make an assault upon another.

"An assault is an intentional attempt, by violence, to do an injury to the person of another." State v. Davis, 23 N.C. 125, 35 Am. Dec. 735.

"Assault is an unlawful attempt, coupled with present ability, to commit a violent injury on the person of another." Words & Phrases, Third Series, 642; People v. Cieslak, 319 Ill. 221, 149 N.E. 815.

Assault does not include battery but battery includes assault. Harris v. State, 15 Okla. Crim. 369, 177 P. 122.

In State v. Davis, above cited, the court uses the following language:

"It is difficult in practice, to draw the precise line which separates violence menaced from violence begun to be executed--for until the execution of it is begun, there can be no assault. We think, however, that where an unequivocal purpose of violence is accompanied by any act, which, if not stopped--or diverted--will be followed by personal injury--the execution of the...