Ryan v. Continental Casualty Co.
| Decision Date | 16 June 1913 |
| Docket Number | 17,199 |
| Citation | 142 N.W. 288,94 Neb. 35 |
| Parties | MARK J. RYAN, APPELLEE, v. CONTINENTAL CASUALTY COMPANY, APPELLANT |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Hall county. JAMES N. PAUL JUDGE. Reversed with directions.
REVERSED.
M. P Cornelius, Harrison & Prince and Manton Maverick, for appellant.
Arthur G. Abbott and O. A. Abbott, contra.
This is an action to recover $ 500 on an accident insurance policy dated January 29, 1909. Thomas P. Ryan, assured, died December 25, 1909. His brother, Mark J. Ryan, plaintiff, had been named in the policy as the beneficiary. Defendant offered to confess judgment for $ 100, and pleaded two defenses to the remainder of plaintiff's claim: (1) Assured was intoxicated when the injury resulting in his death was inflicted, and for that reason defendant is not liable for more than $ 100 under the terms of the insurance contract. (2) The injury causing the death of assured resulted wholly or in part from the intentional act of another person, a risk limited by the policy to one-fifth of the insurance otherwise payable. From judgment on the verdict of a jury in favor of plaintiff for $ 500, defendant has appealed.
1. The evidence of assured's intoxication at the time of the injury is very meager. This conclusion is reached after an examination of the evidence without reference to the abstracts. The jury made a special finding that assured was not intoxicated when injured, and on that issue there is ample evidence to sustain their verdict.
2. The question presented by the other defense is harder to answer. Under "Part V" of the policy, relating to "Special Accident Indemnities," the following provisions are found: "In any of the losses covered by this policy (1) where the injury causing the loss results wholly or in part from voluntary exposure to unnecessary danger or obvious risk of injury, or from the intentional act of the insured or of any other person (assaults committed upon the insured for the sole purpose of burglary or robbery excepted); * * * then in all cases referred to in this paragraph B of Part V the amount payable shall be one-fifth of the amount which otherwise would be payable under this policy, anything in this policy to the contrary notwithstanding, and subject otherwise to all the conditions in this policy contained."
Defendant argues that within the meaning of the policy "the injury causing the loss" resulted "wholly or in part" from "the intentional act" of a person other than insured, that this fact is shown by uncontradicted evidence, and that consequently one-fifth of the amount otherwise payable, or $ 100, is the limit of recovery. During the evening of December 24, 1909, assured was engaged in performing the duties of his employment as a helper on the stage in the opera house at Wood River. After the performance, as late as 1 or 2 o'clock the next morning, he was in that city on the sidewalk in front of a public telephone office with one of the showmen and Charles Thompson. Witnesses who were in the telephone office at the time heard some of the remarks and saw what occurred. Thompson exclaimed, "I can lick you," and struck from his shoulder, hitting assured in the face. The latter fell backward, fracturing his skull on the pavement. Thompson and the showman gave him immediate attention, helped him to his feet, and took him to a railway station a short distance away, where he died. The blow struck by Thompson did not seriously injure assured's face. Death was caused by the injury on the back of his head. Thompson intended to strike assured. The evidence of these facts is uncontradicted. An intention on the part of Thompson to kill assured is not shown.
Under these facts can a recovery in excess of $ 100 be sustained without disregarding the terms of the policy? Defendant admits that decedent was insured against what actually occurred, but insists that its liability was limited by the contract to one-fifth of the face of the policy. Plaintiff argues that, since there is no proof of an intention on the part of Thompson to kill assured, his death was an accident entitling the beneficiary to a full recovery. In this connection it is contended by plaintiff that the words "wholly or in part," as they appear in the clause "where the injury causing the loss results wholly or in part from voluntary exposure to unnecessary danger or obvious risk of injury," refer alone to the "exposure" and the "risk" mentioned in the clause in which they are used, and do not modify "intentional act." The context, the grammatical construction, and the use of the disjunctive "or" between prepositional phrases which relate to the same...
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