Sackett v. Masonic Protective Association
| Citation | 183 N.W. 101,106 Neb. 238 |
| Decision Date | 16 May 1921 |
| Docket Number | 21500 |
| Parties | MYRTLE B. SACKETT, APPELLEE, v. MASONIC PROTECTIVE ASSOCIATION, APPELLANT |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Cedar county: GUY T. GRAVES JUDGE. Affirmed.
AFFIRMED.
R. J Millard and Alfred S. Pinkerton, for appellant.
J. C Robinson and F. P. Voter, contra.
The appellee brought this action to recover upon a policy of accident insurance carried by her deceased husband in the appellant association, which provided that she, as his beneficiary, should be entitled to a certain sum in the event of his death. The defense was that the insured met his death in consequence of "voluntary exposure to unnecessary danger;" there being a provision of the policy relieving the appellant from liability in case of death so resulting. The appellee recovered a verdict and judgment.
The insured was a physician in the town of Laurel, Nebraska. On June 14, 1918, he was shot and killed while driving the town marshal and three other persons in his automobile in pursuit of burglars. Between 1 and 2 o'clock in the morning the marshal was called by telephone to come down town, and when he arrived in front of a certain store a light was flashed from within and he saw a man there. The marshal fired his revolver and went around the corner of the block to the alley in the rear of the store where two residents of the village were standing. Dr. Sackett was coming toward them and remarked, "There he goes," and then they noticed a man about half a block south of them running east. Dr. Sackett and the marshal pursued the man for a short distance and, after hunting around for him without success, returned to where they had been standing. Dr. Sackett then remarked, "Listen, there is a car there," and in a moment they heard a noise and saw a bright light. Dr. Sackett thereupon said that he would get his car, which was standing about 75 feet away, and the marshal stated that he was going to get some more shells and told Dr. Sackett to go and get his car. The marshal went to a near-by residence and procured a revolver, Dr. Sackett meanwhile going for his car.
He picked up the marshal and they started, with another man in the back seat. They took two other men into the car with them on the way down the street. The car which they were pursuing was about 75 rods away. Dr. Sackett drove rapidly and they were gaining on the car ahead when a shot was fired, and the marshal, who saw the flash, but did not hear the report, said: "Hold on, they are shooting back at us." When Dr. Sackett's car had come up within about 25 rods, the car ahead turned out to the right of the road and stopped. Dr. Sackett did not slacken speed, but caught up with the front car in an instant and stopped a little ahead of it on the left side of the road; the cars being only three or four feet apart. Dr. Sackett was sitting on the left side of the front seat with the marshal beside him. The occupants of the other car immediately began firing, and the marshal returned the fire. Dr. Sackett was shot and fatally wounded. There was no evidence that he spoke during the ride, or that he noticed the shot fired in their direction from the front car, or heard the marshal say that they were shooting back at them. The only remark made by Dr. Sackett of which there is any evidence was when he exclaimed that he was hurt.
The main point urged for reversal is that the undisputed evidence just detailed makes out a clear case of "voluntary exposure to unnecessary danger," and that the trial court should have so held, as a matter of law, and dismissed the action. Counsel have cited, and we have found, no adjudicated case in which the act of a private citizen in going with an officer in pursuit of criminals has been considered in connection with such a clause in an insurance policy. The elements of the inquiry must be, first, whether under the facts, Dr. Sackett voluntarily exposed himself to danger, and, second, whether it was an unnecessary danger. To be voluntary, his act in exposing himself to danger must have been intentional and of his own will. This, of course, implies that he was conscious of the peril and purposed to incur it. That he was conscious of the danger could be shown by his acts or words at the time or, in the absence...
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