Overton v. St. Louis Mut. Life Ins. Co.

• Decision Date: 31 October 1866
• Citation: 39 Mo. 122
• Parties: VIRGINIA C. OVERTON, Respondent, v. THE ST. LOUIS MUTUAL LIFE INSURANCE COMPANY, Appellant.
• Court: Missouri Supreme Court

39 Mo. 122

VIRGINIA C. OVERTON, Respondent,

v.THE ST. LOUIS MUTUAL LIFE INSURANCE COMPANY, Appellant.

Supreme Court of Missouri.

October Term, 1866.

Appeal from St. Louis Court of Common Pleas.

Krum & Decker, for appellant.

I. The court erred in giving the respondent's instructions. As a deduction of law it is objectionable, because it assumes the very point in issue, viz, that deceased shot at Williams in the “lawful” defence of his person. What is “lawful” self-defence? This is the very question to be determined by the facts.

If the court had found the facts as they are indisputably proved by all the witnesses, it would appear that deceased provoked a quarrel by false and dishonorable accusations, and continues in the quarrel, and then shoots in ““lawful defence of his person.”--1 Hale, 480; Foster, 273, cited in Harper v. Phœnix Ins. Co., 19 Mo. 512; State v. Gunn, 37 Mo. 467; 1 Russell, Cr. 527; R. C. 1855, pp. 559-60, for definition of justifiable homicide.

II. The case at bar is distinguishable from Harper v. Phœnix Ins. Co., 19 Mo. 512. In that case, “Harper would have been justified had he killed Coryell.”“Harper had retired from the conflict.” The facts of that case showed clearly that Coryell was guilty of a crime. The facts here found show that Williams was innocent; that he could not be charged with the commission of a crime; that Overton was in the act of committing a crime on Williams; that Overton had not retired from the conflict; that Williams acted on the defensive.

C. D. Drake, for respondent.

I. The policy was not forfeited unless the deceased, in the rencontre in which he came to his death, was guilty of a felony--Harper's Adm'r v. Phœnix Ins. Co., 19 Mo. 506.

II. The poliey was not forfeited, because the deceased in the rencontre acted in self-defence; and the question whether he so acted was properly submitted under the instruction given by the court at the plaintiff's request.

WAGNER, Judge, delivered the opinion of the court.

This was an action to recover the amount of a policy of insurance issued by the appellant on the life of Dudley H. Overton, late husband of the respondent. The policy contained this clause, “that in case the said Dudley H. Overton should die in the known violation of any law of this State or of the United States, or of any government where he may be, this policy shall be void, null, and of no effect.”

The sole question in controversy is as to whether Overton came to his death under circumstances which worked a forfeiture of the policy on his life within the provisions of the foregoing clause.

The evidence shows that Overton came to his death by a wound received from a pistol-ball fired by one John S. Williams, in a personal rencontre which took place between them at Fulton, Missouri, on the 14th of February, 1862. The evidence is conflicting and contradictory as to which of ...