Union Cas. & Sur. Co. v. Harroll

• Citation: 40 S.W. 1080,98 Tenn. 591
• Parties: UNION CASUALTY & SURETY CO. v. HARROLL.
• Decision Date: 17 April 1897
• Court: Supreme Court of Tennessee

40 S.W. 1080

98 Tenn. 591

UNION CASUALTY & SURETY CO. v. HARROLL.

Supreme Court of Tennessee.

April 17, 1897

Error from circuit court, Shelby county; L. H. Estes, Judge.

Action by Nancy Harroll against the Union Casualty & Surety Company. From a judgment in favor of plaintiff, defendant brings error. Affirmed.

L. E Wright and Buchanan & Minor, for plaintiff in error.

Perkins & Watson, for defendant in error.

BEARD J.

This is an action on a policy which insured defendant in error against loss of life of her husband resulting from "bodily injuries sustained through external, violent, and accidental means," within the meaning of the policy and its conditions. Among the conditions is that "this insurance does not cover *** voluntary exposure to unnecessary danger." The husband of defendant in error was killed by a pistol shot fired by one McNeal, and the main defense set up was that the death of Harroll occurred within the terms of this condition. The evidence in the case discloses that the deceased and McNeal were employés of a railroad leading into Memphis; that there had been more or less of bad feeling between them, breaking out into occasional quarrels, in which profane and insulting language was used by Harroll towards McNeal; that on the morning of the homicide, and a very short time before it occurred, the parties met, and agreed that they would stop quarreling, but that soon after this agreement was made the deceased gave an order to McNeal to perform some service about the train, then being made up which the latter thought was beyond the scope of his duty and therefore declined to obey, and thereupon the quarrel was offensively renewed by Harroll. To this point the case rests exclusively on the testimony of McNeal, the survivor of the tragedy, and a witness for plaintiff in error, and at this point the divergence in the evidence begins. This witness says, immediately upon his refusal to obey the order, Harroll, applying a vulgar and abusive epithet to the witness, advanced threateningly upon him four or five steps, when witness, having retreated a corresponding distance, believing himself to be then in danger of death or great bodily harm, suddenly drew a pistol, which up to that moment was concealed, and fired the fatal shot. He also states that at the moment of time Harroll renewed the quarrel and began his menacing advance, he (the deceased) was standing on or near the steps of the rear end or platform of the last car in the train, and when shot he was about five steps from that position, and still moving towards the witness. Upon this evidence it was insisted by the insurance company that the death of Harroll was the result of voluntary exposure to unnecessary danger on his part. On the other hand, and in rebuttal of this statement of McNeal's, the defendant in error introduced testimony strongly tending to show that the deceased at the time of the shot was in the act of ascending the steps of the car, with his left hand on the iron rod or railing, and his right arm hanging by his side; and that when he received the shot he lifted his right hand to his breast where the pistol ball entered, and, gradually relaxing his hold on the iron rod or railing, sank to the ground, dead. This testimony also disclosed that the assured was unarmed at the time of the difficulty. Upon this state of the record it was insisted for defendant in error that when killed Harroll was making no aggressive demonstration towards his slayer, but, on the contrary, was on the point of entering a coach for the purpose of discharging his duties as porter of the train; and that, this being so, the condition in question could not be invoked to defeat a recovery on this policy. Upon these two contentions of fact the case was submitted to a jury, who returned a verdict in favor of the defendant in error.

With this finding we cannot interfere unless some error was committed by the court. The first assignment of error is upon that part of the charge of the trial judge in which he said to the jury, though they "believed from the evidence that the deceased was advancing on McNeal in a threatening manner at the time the latter shot him, yet this injury would be accidental as to Harroll if he did not know at the time or had not reason to believe, McNeal was armed with a deadly weapon." It is to be observed in this paragraph of his charge that the trial judge was not dealing with the condition...