Strother v. Business Men's Accident Association of America

• Decision Date: 03 July 1916
• Citation: 188 S.W. 314,193 Mo.App. 718
• Parties: SAM B. STROTHER, Administrator of the Estate of THOMAS ORIE McCARTY, Deceased, Appellant, v. BUSINESS MEN'S ACCIDENT ASSOCIATION OF AMERICA, Respondent
• Court: Kansas Court of Appeals

188 S.W. 314

193 Mo.App. 718

SAM B. STROTHER, Administrator of the Estate of THOMAS ORIE McCARTY, Deceased, Appellant, v. BUSINESS MEN'S ACCIDENT ASSOCIATION OF AMERICA, Respondent

Court of Appeals of Missouri, Kansas City

July 3, 1916

Appeal from Jackson Circuit Court.--Hon. O. A. Lucas, Judge.

AFFIRMED.

Judgment affirmed.

A. R McClanahan, Jas. E. Taylor and Reed & Harvey for appellant.

Gilmore & Brown for respondent.

OPINION

TRIMBLE, J.

Thomas O. McCarty held an accident policy issued by the defendant an assessment accident insurance company organized under the laws of Missouri. In case of his death by accident, the policy provided for the payment of $ 5000 to his estate. However, it contained the following provision:

"This policy does not cover . . . any injury, fatal or otherwise, intentionally inflicted by the insured (sane or insane) or by any other person (sane or insane) except it be established that the assault was committed for the sole purpose of burglary or robbery."

While the policy was in force, McCarty was struck a violent blow upon the head with a heavy wooden bar by one, Cliff Dunford, from the effects of which insured died shortly thereafter. His administrator brought this suit to recover the amount of the policy.

The company set up the above quoted provision of the policy and alleged that insured "died of fatal injuries intentionally inflicted upon him by another person, to-wit, one . . . Cliff Dunford; that the said Cliff Dunford intentionally struck the said Thomas Orie McCarty a heavy and powerful blow upon the head with a piece of timber or lumber about two by four inches in width and thickness and about five feet in length, causing the fatal injuries from which the said Thomas Orie McCarty died."

The reply admitted that insured "was struck upon the head with a board by Clifford Dunford and received injuries thereby which proved fatal, but plaintiff denies that the said Dunford, when he struck deceased, intended to inflict a fatal injury."

At the close of all the evidence the court sustained defendant's demurrer thereto, and the plaintiff has brought the case here.

The circumstances leading up to and surrounding the infliction of the blow from which insured died are as follows:

It occurred in a restaurant maintained in connection with a saloon in Kansas City. Late in the night of December 14, 1914, three women and three men were seated at a table in the restaurant. One of these women, Rose, had been living with insured, though they were not married. Two of the men were farmers who had sold some horses to the third man, whose name was King, and the three had come to the restaurant at his suggestion. While thus seated at the table, two men, Cordell and Dunford, entered the room. Cordell approached one of the women, known as "Billie" and tried to get her to go home. Rose asked her to stay, and a quarrel started between Rose and Cordell. The latter, after using vile language, drew a knife and forced Rose to retreat toward the door. McCarty, the insured, was in the saloon and, learning in some way that Rose was in trouble, came through the street door into the restaurant and put Cordell out, either pushing him or knocking him out of the door. Rose at once shut the door and put her foot against it to prevent Cordell's return. McCarty, in the restaurant turned around and was facing Dunford when the latter, having picked up a heavy wooden bar, a two-by-four, six feet long, and, holding it in both hands, drew it back over his head to an angle of forty-five degrees so as to get "a full swing" and brought it down with all his force upon McCarty's head. McCarty dropped to the floor without uttering a word. He was unable to speak when one of the women tried to help him, being as she said, "paralyzed." He was taken home and died eight days later.

When Dunford struck him there was no one between the two or close to them and there is no room for any inference that Dunford, when he struck, was intending to do otherwise than to strike McCarty, the individual he did strike, though it is true the two men were strangers to each other. After felling McCarty, Dunford announced that he proposed "to clean up the place" and, approaching one of the farmers at the table, struck at him with the wooden bar. The latter, however, avoided the blow and gave him "a poke in the jaw" which caused him to drop the bar. Thereupon Dunford and Cordell, who by this time had returned, began cutting the farmer with knives until in some way, not disclosed by the record, they ceased and left.

Under the restricted meaning given the term "accident" in policies of this character, the blow which McCarty received, and his death resulting therefrom, may be said to be accidental; for as to him they were unforeseen, unexpected and unusual, not taking place according to the usual course of things, and, therefore, were accidental in the usual, natural and popular meaning of the word. [Lovelace v. Travellers Protective Assn., 126 Mo. 104, 28 S.W. 877.] However, the decision in the case at bar does not turn upon whether the death was accidental, but upon another condition in the policy, which says it shall "not cover any injury, fatal or otherwise, intentionally inflicted by . . . any other person." The question is, Do the circumstances surrounding insured's death bring it within this exception to defendant's liability?

While it is true that in the construction of insurance contracts that interpretation must be adopted which is most favorable to insured, yet this is only where there is fair room for construction. If words are used which clearly indicate the intention of the parties, effect must be given thereto. Courts have no more right to remake insurance contracts than any others.

Now, unquestionably McCarty's injury was inflicted by Dunford; and there is no room for any inference that the latter did not intend to inflict it. McCarty had just pushed or thrown Cordell out of the restaurant and had turned back toward the body of the room and was facing Dunford when the latter, having picked up the bar as his companion was being put out, swung it back over his head so as to give it full force and then brought it down upon McCarty's head. No one was about them. McCarty was the one he intended to strike and the general "free for all fight" that plaintiff claims took place, occurred after McCarty had been thus intentionally felled.

Neither is there anything giving rise to an inference that McCarty's death resulted from anything other than the blow itself. The blow was the direct, immediate and...