Prudential Life Ins. Co. v. Overby's Adm'x

• Decision Date: 12 December 1933
• Citation: 251 Ky. 750,65 S.W.2d 1006
• Parties: PRUDENTIAL LIFE INS. CO. v. OVERBY'S ADM'X.
• Court: Kentucky Court of Appeals

65 S.W.2d 1006

251 Ky. 750

PRUDENTIAL LIFE INS. CO. v. OVERBY'S ADM'X.

Court of Appeals of Kentucky

December 12, 1933

Appeal from Circuit Court, Henderson County.

Action by William T. Overby's administratrix against Prudential Life Insurance Company. Judgment for plaintiff, and defendant moves for appeal.

Motion for appeal sustained, appeal granted, and judgment reversed.

Pentecost & Dorsey, of Henderson, for appellant.

Odie Duncan, of Henderson, for appellee.

RICHARDSON Justice.

The Prudential Life Insurance Company of America, for a stipulated paid premium, issued to William T. Overby a policy by which it agreed to pay his estate $265 on proof of his death; "if his death resulted through external, violent and accidental means," the further sum of $265.

On the 29th day of March, 1930, while the policy was in effect Overby was domiciled in the city of Henderson, Ky. where he was shot and killed with a pistol discharged into his body by another. The company, on proof of his death, paid $265 but refused to pay the further sum of $265, insisting that his death was not "through external, violent and accidental means." His administratrix filed this action to recover the $265, alleging that his death was caused through external, violent, and accidental means. The defense is a denial. On a trial before a jury a verdict of $265 was returned in favor of the administratrix.

The determinative question herein is a mixed one of law and fact.

Overby and Tom Baskett were engaged in a game of pool, about 6 p m., in Mitchell's pool room. Dennis P. Rooney entered the pool room, sat down, and began to smoke, when an argument started between Overby and Baskett. Overby got out his knife changed it from his right to his left hand, and struck Baskett with his open hand; Baskett went to a pool table, got a cue stick, and as he did this Rooney grabbed him by the arm, saying to him, "That is a poor way to settle trouble," and further remarked, "You go over and make friends with Overby." Baskett said he would do so and went to Overby, patted him on the shoulder, and said, "You and I can make friends, and lets do that." Overby said, "All right." Rooney left, went to the head of the bar in front, saying to them, "Come up and be friends, and I will buy drinks for the house." Overby then came by the pool table, the same way Baskett was going, and when within about forty feet of Rooney, announced to Rooney, "All right, you damn s____ of a b____ you gave me a dirty deal several years ago and we will settle it." At the time he made this statement he was going toward Rooney with an open knife in his hand. Rooney said to him, "Tom don't you come on me with that knife, I have been cut three or four times." He repeated the warning as Overby continued going toward him with the open knife still in his hand. He continued to go in the direction of Rooney, and as he came nearer, Rooney several times repeated his remark concerning the knife. When Overby got within four or five feet of him with his open knife, in the language of the witnesses, he made a "bull run" at Rooney; Rooney "jumped back in a 'V' shape," and as Overby raised his arm and cut at him, he fired his pistol at him three times; the bullets entering the back from the side. At the time the shots were fired Overby had his arm up in the act of striking at Rooney with the knife. Rooney's recitation of the facts is not disputed by either party. The administratrix insists they show that the death of Overby was "through external, violent and accidental means," within the meaning of these terms as they are used in the policy. The Prudential Life Insurance Company contends they demonstrate that the death of Overby was not "through accidental means," as these words are defined in the policy. It admits that his death was the result of "external and violent," but not "accidental," means.

Whether Rooney intended or not to shoot and kill Overby is immaterial, for if the latter had no choice of bringing the injury on himself, then as to him it was unforeseen--a casualty, and accidental. The...