Owens v. National Life & Acc. Ins. Co.

• Decision Date: 17 June 1930
• Parties: OWENS v. NATIONAL LIFE & ACCIDENT INS. CO.
• Court: Kentucky Court of Appeals

29 S.W.2d 557

234 Ky. 788

OWENS v. NATIONAL LIFE & ACCIDENT INS. CO.

Court of Appeals of Kentucky

June 17, 1930

Appeal from Circuit Court, Whitley County.

Suit by Jessie Owens against the National Life & Accident Insurance Company. From a judgment on a directed verdict for defendant plaintiff appeals.

Affirmed.

T. B Culton, of Corbin, C. B. Upton, of Williamsburg, and R. L Pope, of Knoxville, Tenn., for appellant.

Tye Siler, Gillis & Siler, of Williamsburg, for appellee.

LOGAN J.

The appellant, Jessie Owens, was the beneficiary in an insurance policy issued by appellee on the life of her husband. It was a policy providing indemnity for loss of life by accidental means and for loss occasioned by nonfatal accidents as well as for loss of time caused by sickness. Sherman Owens, the husband of appellant, was intentionally shot and killed by a policeman in the town of Corbin. Appellant gave notice to the insurance company advising that her husband had been accidentally shot and killed by a pistol fired by another. Appellee made some investigation and deferred the payment of the amount called for by the terms of the policy, or any adjustment of the claim, until it should be determined, as the result of a trial in the prosecution of the case against the person who fired the shot, who was indicted on a criminal charge, whether the shooting was intentional or accidental. The trial resulted in the conviction of the defendant in that case, thus establishing that the shooting was intentional, as the issues made by the proof were such as to require the jury to determine whether the shooting was intentionally done. When it had been determined that the shooting of Sherman Owens was intentional and not accidental, appellee declined to pay the claim. Suit was instituted on the policy contract, and, at the conclusion of the evidence, the court directed the jury to return a verdict in favor of appellee.

The defense relied on by appellee was that, under the provisions of the policy, it was not responsible for injuries, fatal or nonfatal, or death intentionally inflicted upon the insured by himself, or by any other person except by burglars or robbers. Under a heading "Not Covered," the policy contained a provision against liability for injuries intentionally inflicted, along with other provisions exempting the company from liability in case of accidental injury.

Appellant filed a reply in which there was an attempt to avoid the provision in the policy relied on by the company as a complete defense because the company had directed appellant to make out and submit proofs of loss after having ascertained the facts in connection with the killing of the insured, and that she incurred an expense of 50 cents in making out the proofs of loss, and, having induced her to incur expenses in the preparation of the proofs of loss, it was estopped to deny her right of recovery on the policy. It was further alleged by way of avoidance that appellee, through its officers and agents, promised to pay her the principal sum mentioned in the policy if she would wait until after the trial of the man who killed her husband, and that, acting upon the agreement that appellee would pay after the trial, she employed attorneys to prosecute the man who killed her husband and paid out $450 in connection with the prosecution which she would not have expended but for the promise of appellee that it would pay the principal sum mentioned in the policy if the slayer of her husband should be convicted. She alleged that the same promise was made by appellee more than once, and that by reason of its conduct it had waived its right to rely upon the defense of nonliability because of an intentional injury.

Further she sought to have the policy reformed, and her ground, as alleged in her reply, is that, simultaneously with the delivery of the policy to her husband, there was also a letter written by appellee and signed by one of its officers calling special attention to the policy, and stating that it covered all injuries accidentally sustained; that, under the construction of such provisions in policies, this court had held that the intentional shooting of another without his fault constituted an accident as to him, and that the shooting of her insured was therefore an accident, and, when the company itself advised that the policy covered all injuries accidentally sustained (except injuries not material here), it had the effect of changing the provisions of the policy to the extent of making the company liable for injuries intentionally inflicted; that the fact of the writing of this letter, coupled with the promises and assurances of appellee through its agents and officers that the claim would be paid after the trial of the man who killed her husband and the advice of the company that she should employ counsel to aid in the prosecution, were sufficient to authorize a court of equity to adjudge a reformation of the provisions of the policy.

There can be no reformation of a written contract such as an insurance policy unless the evidence is clear and convincing and it can be reformed only on the ground of mutual mistake or fraud. Scott v. Spurr, 169 Ky. 575, 184 S.W. 866; Atha v. Webster, 181 Ky. 581, 205 S.W. 598; Anderson v. Sandy Valley & Elkhorn Railway Co., 171 Ky. 740, 188 S.W. 772; National Union Fire Insurance Co. v. Light's Adm'r, 163 Ky. 169, 173 S.W. 365;...