Union Accident Co. v. Willis

• Decision Date: 12 January 1915
• Docket Number: Case Number: 3558
• Citation: 44 Okla. 578,1915 OK 23,145 P. 812
• Parties: UNION ACCIDENT CO. v. WILLIS.
• Court: Oklahoma Supreme Court

1915 OK 23

145 P. 812

44 Okla. 578

UNION ACCIDENT CO. v. WILLIS.

Case Number: 3558

Supreme Court of Oklahoma

Decided: January 12, 1915

Syllabus

¶0 1. INSURANCE -- Accident Policy -- Excepted Cause -- Pleading and Proof. Where, in an action on a policy of accident insurance, it is claimed that death was due to one of the causes excepted from the operation of the policy, it is for the insurer to plead and prove such fact.

2. SAME--Intentional Injury. A policy of insurance, which provides that indemnity shall not be payable for injuries fatal or otherwise, intentionally inflicted upon the insured by himself or some other person, does not exclude a recovery where the insured dies from a fracture of the skull caused by a fall on a hard pavement, the result of a blow in the face struck by the fist of another, where the blow but not the fatal result was intentionally inflicted.

3. SAME--"Intentionally Inflicted." The death of the insured not having been intended by his assailant, and being an unforeseen and unusual result of the blow struck, the insurer is not relieved of liability on account of the fact that the blow itself was intentionally inflicted. The words "intentionally inflicted," as used in the policy, should be construed to refer to the fatal injuries resulting from the fall, and not to the blow.

4. INSURANCE--Policy--Construction. If a policy is so drawn as to require interpretation, and to be fairly susceptible of two different constructions, the one will be adopted that is most favorable to the insured.

5. SAME -- "External, Violent, and Accidental Means" -- "Accidental." An injury intentionally inflicted by another upon the insured, and without the foreknowledge or connivance of the insured, is an injury inflicted through "external, violent, and accidental means." An injury is "accidental," within the the meaning of an insurance policy, although it is inflicted intentionally and maliciously by one not the agent of the insured, if unintentional on the part of the insured.

Error from Superior Court, Muskogee County; Farrar L. McCain, Judge.

Action by Mary Willis, an infant, by her guardian, W. P. Donnell, against the Union Accident Company, a corporation. Judgment for plaintiff, and defendant brings error. Affirmed.

Baker, Pursel, Gavin & Leith and C. A. Mountjoy, for plaintiff in error.

Arnote & Rogers and Charles A. Cook, for defendant in error.

SHARP, C.

¶1 Between the hours of eight and nine o'clock on the evening of December 10, 1909, the insured, Riley W. Willis, while walking along the street in the city of Ardmore, was knocked down by a blow in the face struck by one Ernest Keys. Striking the pavement, the insured sustained a fracture of the skull, resulting in his death. The action against the defendant is brought by the guardian of the beneficiary, and is to recover on a certain accident policy issued on the life of said Riley W. Willis.

¶2 The defense in this court is predicated upon two certain provisions of the policy, which, it is claimed, exempt it from any liability, namely:

(1) "In the event that the insured, while this policy is in force, shall sustain personal bodily injury, which is effected directly and independently from all other causes through external, violent and purely accidental means, and which injury causes, at once (within 24 hours). * * * For loss of life four hundred dollars (the principal sum of this policy)."

(2) "Indemnity shall not be payable for injuries fatal or otherwise intentionally inflicted upon the insured by himself or some other persons."

¶3 We fail to find, however, that the former provision of the policy was availed of by the insurer as a defense in the trial court. It is a rule well supported by authority, and based upon sound principle, that, where death or injury has resulted from one of the excepted causes enumerated in the policy, the onus both of averment and proof in such regard rests upon the insurer. Vernon v. Iowa State Traveling Men's Ass'n, 158 Iowa 597, 138 N.W. 696; Anthony v. Mercantile Mutual Acc. Ass'n, 162 Mass. 354, 38 N.E. 973, 26 L.R.A. 406, 44 Am. St. Rep. 367; Railway Officials' & Employees' Acc. Ass'n v. Drummond, 56 Neb. 235, 76 N.W. 562; Stevens v. Cont. Casualty Co., 12 N.D. 463, 97 N.W. 862; Standard Life & Acc. Ins. Co. v. Jones, 94 Ala. 434, 10 So. 530; Cronkhite v. Travelers' Ins. Co., 75 Wis. 116, 43 N.W. 731, 17 Am. St. Rep. 184; Home Benefit Ass'n v. Sargent, 142 U.S. 691, 12 S. Ct. 332, 35 L. Ed. 1160; Accident & Employer's Liability Insurance, Fuller, pp. 100-102. Further consideration need not therefore be given this defense.

¶4 In the absence of any provision to the contrary, a policy insuring against death effected through "external, violent and accidental means," an injury inflicted intentionally by another upon the insured, but without the foreknowledge or connivance of the insured, is within the terms of the policy rendering the company liable. If the injury is not brought about by the agency of the insured, and if it is not anticipated by him, it is none the less accidental as far as he is concerned, although it may be inflicted with malice and premeditation by the other party; the great weight of authority being that an injury intentionally inflicted upon the insured by another is accidental, if it is unintentional on the part of the insured. As a protection against this class of liability, a clause is frequently inserted in policies of accident insurance, specifying that the policy shall not cover injuries, fatal or otherwise, intentionally inflicted upon the insured by himself or some other person. Ordinarily, where a policy expressly so provides, it is not necessary that the insured should take part in the intent of such third person, in order to make the exception operative, and relieve the company from its liability. The policy, in such cases, becomes one of limited indemnity as contradistinguished from that of general indemnity. It is shown that the blow sustained by the insured was intentionally inflicted. The testimony as to the origin of the trouble between Keys and the insured is conflicting. That of plaintiff tends to show that the insured was sober and was not the aggressor in the difficulty; while the defendant's testimony tends to establish that the insured was drunk at the time, ran into Keys, and first struck him. There is nothing in the testimony that tends to distinguish the difficulty from an ordinary fist fight where but two or three blows were passed, except in the fatal consequences that attended it. Keys and two companions met Willis and another Indian on Caddo street near one of the main business corners of the city. The former did not know Willis at the time, and, whatever may have provoked the difficulty, there is no room for belief that the injuries sustained by Willis were intended by Keys. At the time Keys, who was a young man, weighing but 133 pounds, though right handed, was unable to use his right hand on account of a broken bone, and struck the insured, who was a heavier man, with his left fist. The blow knocked the insured backward on the slanting pavement, with the result that his head struck the pavement, fracturing his skull and causing death. Keys did not know until the morning following that Willis had died as a result of the fall. It is not even claimed that Keys intended the result that followed, but it is insisted that, having struck Willis intentionally, a recovery cannot be had on account of the last- mentioned provision of the policy. We do not think so. As we have seen, the insured's death was accidental. The injury which resulted fatally was not intentionally inflicted by Keys. The case differs materially from the great majority of the reported cases. Had Keys had in his hand a deadly weapon, the use of which was reasonably calculated to produce death, and in fact did so, a different question would be presented. No motive for killing the latter is shown to have existed, and the means used indicates only an intention to strike the insured. The result was unforeseen and unusual, and not such as would ordinarily follow a blow with the fist. It was not the logical result of a deliberate act, and could not reasonably have been anticipated by Keys, and he cannot be charged with a design of producing it. It was the result of fortuitous circumstances.

¶5 In Richards v. Travelers Ins. Co., 89 Cal. 170, 26 P. 762, 23 Am. St. Rep. 455, the policy exempted against liability where death was the result of design on the part of the insured or any other person. The court instructed the jury that:

"If the death of Phillip Richards was caused by a blow dealt him by H. J. Dassonville, or some other person, that would not

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