Utter v. Travelers' Ins. Co.

• Decision Date: 28 April 1887
• Parties: UTTER v. TRAVELERS' INS. CO.
• Court: Michigan Supreme Court

32 N.W. 812

65 Mich. 545

UTTER v. TRAVELERS' INS. CO.

Supreme Court of Michigan

April 28, 1887

Error to district court, Saginaw county.

Hanchett & Stark, for plaintiff and appellant.

Wisner & Draper, for defendant.

MORSE J.

The defendant, on the seventeenth day of September, 1880, in consideration of a premium then paid by him, issued and delivered to William Samuel Utter an accident insurance policy for the benefit of the plaintiff, who was his mother. This policy insured said Utter against death occurring through violent, external, and accidental means for one year, in the sum of $1,000. When this insurance was effected, the said Utter was under age, and had before that time enlisted as a musician in the regular army. March 28 1880, he deserted the service, while stationed at Fort Verde Arizona, and went to Los Angeles, California. He was at the latter place when insured, and at the time of his death which occurred within the life of the policy, February 12, 1881. After complying with the requisites of the policy as to proofs of death, and after refusal of payment thereon, the plaintiff brought suit for the recovery of the sum named therein in the circuit court for the county of Saginaw.

The defendant pleaded the general issue, and gave notice under the same that it was provided in the policy as follows: " 'And no claim shall be made under the policy when the death or injury may have happened in consequence of voluntary exposure to unnecessary danger, or while the insured was, or in consequence of his having been, under the influence of intoxicating drinks, or while engaged in or in consequence of any unlawful act;' and said defendant will show and prove, upon the trial of said cause, that William Utter, the assured named in said policy, was a soldier in the army of the United States, and while so engaged, on or about the twenty-eighth day of March, 1880, deserted and fled from his past and command; and while being a deserter, and endeavoring to avoid capture as a deserter, and being returned to the army authorities, and while seeking to escape arrest as a deserter, was shot and killed. And said defendant will also show that, at the time said William Utter received the injury which resulted in his death, he was intoxicated; and also that such injury was received in consequence of his having been under the influence of intoxicating drinks. And defendant will also show that the death of said William Utter happened in consequence of his voluntary exposure to unnecessary danger, and in consequence of his unlawful act, in that, being a soldier in the army of the United States, he became and was a deserter therefrom on or about the twenty-eighth day of March, 1880, thereby subjecting himself to pursuit and attempted capture, and the danger and peril attending the same, and thereby being engaged in an unlawful act; and while being such deserter, and while attempting to escape capture, and thus exposing himself to unnecessary danger and peril, and while thus engaged in an unlawful act, the said William Utter was shot and killed by an officer who was endeavoring to arrest him as a deserter, and from whom said Utter was seeking to escape. The defendant will show also that the said William Utter was killed while engaged in an unlawful act, and also in consequence of an unlawful act, within the meaning of said policy, in that he did commit an assault upon one J.A. Berry, by pointing directly at him (said Berry) a pistol in a threatening manner, and so as to induce in the mind of said Berry the belief that he intended to fire, and that he (said Berry) was in danger, and thereupon, in consequence of said act of Utter, said Berry shot and killed him."

The policy also contained the following clause, which becomes material in the discussion of the case as it stands in this court: "And this insurance shall not be held to extend to disappearances, nor to any case of death or personal injury, unless the claimant under this policy shall establish, by direct and positive proof, that the said death or personal injury was caused by external violence and accidental means, and was not the result of design, either on the part of the deceased or of any other person."

Upon the trial, at the close of the testimony, the circuit judge directed a verdict for the defendant. The jury rendered such verdict, and judgment passed thereon for the defendant.

Utter was killed in a house of ill fame in Los Angeles, by a pistol-shot fired by one Berry, a deputy-sheriff of Los Angeles county. It seems that the captain of the company to which Utter belonged learned of his whereabouts, and telegraphed to the sheriff a description of Utter, stating that he was a deserter. This telegram was shown to Berry, and he was instructed by the under-sheriff to arrest Utter. Berry, without any other warrant, process, or other authority, went to this house where Utter was, and shot and instantly killed him. The facts as to the killing are conflicting, as stated by the different witnesses.

George Branagan, who testifies on behalf of the plaintiff, says that Utter, John H. Sheehan, and himself were in the house together, sitting in a room used as a kitchen, talking together. Utter said a policeman was after him. After they had sat there some five or ten minutes some one came to the front door and rapped very loud. The door was locked. There was a door of the kitchen opening out on an alley-way that ran into the street. Some one came and rapped at that door, and then stopped. The noise stopped a little while. Perhaps a minute afterwards Utter got up and opened the door. A shot was fired, and he fell. Then one Berry came through the door with his pistol in his hand, pointed the pistol at Sheehan, and told him to throw up his hands; saying to him, "I believe you are Billy Utter." Sheehan replied, "No; you've killed your man." The door through which Utter was shot opened on the inside of the room, and turned on its hinges to the right, so that it was impossible almost for one at the same time to use any weapon. "The shot was fired as soon as the door was opened wide enough to allow Utter to poke his head around, and look out." Branagan did not hear anything spoken, either by Berry or Utter at the time. Had anything been said, thinks he would have heard it. Utter was shot in the head. He was not under the influence of intoxicating liquors, and Branagan did not see any revolver in his hand when he was shot.

Berry testified on the part of the defendant that he was deputy-sheriff of Los Angeles county; that on February 12 1881, he received instructions from the under-sheriff to arrest William Utter. He had no warrant or other writ, and no complaint had been lodged against Utter. Had no authority except the under-sheriff's instructions, and a telegram he had seen, the substance of which was to arrest Utter, he thinks, for being a deserter; that, on receipt of telegram, he asked Jeff. Thomson to go with him. They found Utter in a house of ill fame on Los Angeles street, in Los Angeles, California. Witness looked through the blind into the room, and saw Utter and another man in a room. He then sent Bottelle, a man who was with witness, to arm himself. While he was gone, a woman came out of the house, and ordered witness off. He refused to go, but followed her into the house. When he got to the room where he had seen Utter, there was no one in it. Heard a noise in an adjoining room, and tried to enter that room, but the door was locked. He then heard a noise as of a door opening on the outside, and passed out, and was approaching an outside door,...