Travelers' Ins. Co. v. Dupree

• Decision Date: 03 June 1919
• Docket Number: 6 Div. 559
• Citation: 82 So. 579,17 Ala.App. 131
• Court: Alabama Court of Appeals
• Parties: TRAVELERS' INS. CO v. DUPREE.

82 So. 579

17 Ala.App. 131

TRAVELERS' INS. CO v. DUPREE.

6 Div. 559

Court of Appeals of Alabama

June 3, 1919

Appeal from Circuit Court, Jefferson County; C.W. Ferguson, Judge.

Action by George H. Dupree against the Travelers' Insurance Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

The facts sufficiently appear. The following written charges were refused to the defendant:

Assignment 2. If you believe from the evidence that the plaintiff was the physical aggressor and struck the first blow in the encounter between him and Mr. Harper, it is your duty to return a verdict in favor of the defendant, although you may also believe from the evidence that before plaintiff struck said Harper said Harper cursed and abused the plaintiff.

Assignment 3. If you believe from the evidence that plaintiff would not have been injured had he not struck Harper, and that the striking at Harper by plaintiff was the direct and sole cause of the struggle in which plaintiff was injured you must find for the defendant.

Assignment 6. The court charges you that, if you believe from the evidence that Mr. Harper went to plaintiff's office and without cause or reason abused and cursed the plaintiff yet if you further believe from the evidence that plaintiff was the physical aggressor and struck the first blow in the encounter which followed, and that during the said encounter he was injured, you must find for the defendant.

The following excerpts from the court's oral charge were excepted to:

"If you believe that Harper committed this assault on Dupree or was advancing on him in a threatening manner as if to attack him, why, then, if the circumstances were such as to impress a reasonably prudent man with the belief that he was about to attack, taken in connection with the words Harper is said to have used towards Dupree, then it is for you to say whether or not Dupree under these circumstances was acting in self-defense when he resisted that."

And:

"Or if he was acting in self-defense, and this injury was received by him falling against the safe and breaking two or three ribs and an arm, if you believe he injured or broke his arm while resisting the alleged threatening advance of Harper on him at the time, then it may be said that the injury received was accidental."

And:

"But it is insisted by the plaintiff, however, that his statement while on the stand as a witness is a true version of the facts in this case."

Tillman Bradley & Morrow, of Birmingham, for appellant.

R.H Thach, of Birmingham, for appellee.

SAMFORD J.

The plaintiff was insured by the defendant against "loss resulting from bodily injuries, effected directly and independently of all other causes, through external, violent, and accidental means." According to the plaintiff's contention, which was supported by evidence, the plaintiff was injured while engaged in a difficulty with one Harper, under the following circumstances: Plaintiff was in his own office, when Harper entered, and without provocation began a conversation with plaintiff, in which Harper became abusive in his language towards plaintiff, and finally used toward him several vile epithets, at the same time making demonstrations with his fists as if to attack and "rushing" plaintiff as he arose from his chair, whereupon plaintiff arose from his chair and struck Harper a blow on the jaw, and in the difficulty plaintiff was knocked down, fell against an iron safe, and as a result had his right forearm and three ribs broken. The point is made by defendant that, as plaintiff was the physical aggressor in the encounter in which he was injured, the injury sustained by him cannot be classed as an accident within the terms of the policy. It seems to be conceded that an injury inflicted on one who did not voluntarily enter into an affray is an accident, and a recovery may be had therefor, in the absence of an exception in the policy. 4 Cooley's Briefs, p. 3159; 14 R.C.L. p. 1255, § 433; Supreme Council v. Garrigus, 104 Ind. 133, 3 N.E. 818, 54 Am.Rep. 298; Fidelity & Cas. Co. v. Johnson, 72 Miss. 333, 17 So. 2, 30 L.R.A. 206. Nor are the above in conflict with the case of Prudential Cas. Co. v. Curry, 10 Ala.App. 642, 65 So. 852.

That...