Orr v. Travelers Insurance , 120 Ala. 647 ( 1898 )

SHARPE, J.

The policy here sued on was issued by appellee to Jackson Orr, and stipulates, among other things, for the payment to his wife, the appellant, of one thousand dollars in the event of his death during the period of insurance through external violent and accidental means. It contains a clause specifying certain injuries not covered by the insurance, among which is death resulting from “intentional injuries (inflicted by the insured or any other person except burglars and robbers).” The defendant pleaded the general issue and several special pleas ; one denying that the death of Jackson Orr was occasioned by bodily injuries effected through external violent and accidental means, and the others averring in substance that his injuries were intentionally inflicted by another. The pleas were demurred to upon several grounds, but the ground insisted upon here is, that they do not show that the injuries were intentional on the part of the insured or were by his. consent or procurement. The question so raised goes to the merits of the cause, upon it chiefly the liability of the appellee depends ; since the evidence as to the manner of the death is substantially without conflict.

It is contended for the plaintiff that the stipulation in question is intended only to provide against acts committed or procured by the insured, and in aid of that contention the rule is invoked whereby ambiguous terms in such contracts for indemnity are construed most strongly against the insurer and in favor of the assured. We think that the rule is inapplicable here, for the reason that the language employed expresses clearly an exemption from the risk of injuries inflicted intentionally by another as well as by the insured. Many adjudications upon policies precisely similar have so held.—Travelers Ins. Co. v. McConkey, 127 U. S. 661; Fischer v. Travelers Ins. Co., (Cal.) 19 Pac. Rep. 425; McCarthy v. Travelers Ins. Co., (Col.) 25 Pac. Rep. 713; Butero v. Travelers Ins. Co., (Wis.) 71 N. W. Rep. 811; Hutchcraft v. Ins. Co., (Ky.) 8 S. W. Rep. 570; Utter v. Travelers Ins. Co., 8 Am. St. Rep. 913.

These pleas sufficiently aver the intentional infliction by another of the injury producing the death of the insured, and are not subject to the grounds of demurrer insisted on.

Upon the trial it was shown without dispute that the deceased was'shot and killed by one Jesse Sugars, but it is contended for the plaintiff that the proof shows nothing more than an intentional act of shooting without the specific intent to shoot or injure any one in particular, and consequently fails to show that the injury as distinguished from the act of shooting was the result of intention. The case of Hutchcraft v. Ins. Co., supra, is cited for the appellant, and it holds that an injury intended by one inflicting it, but not intended by and not foreseen by the insured, is accidental as to him within the meaning of that word as used in the policy ; but it also decides that another part of the policy providing that no claim should be made thereunder when the death was caused by “intentional injuries inflicted by the insured or any other person” applied to such injuries by other persons as are intentionally directed against the insured. To the same effect is the case of Utter v. Ins. Co., supra, which also is relied on by appellant. In the latter case it is said: “The design intended by the terms of the policy must be the actual result accomplished, and not the design of the act itself which resulted in the killing of one contrary to the design of the act.” There the insured was shot and killed by another, and the evidence of intention being in conflict it was held to be a question for the jury. We think the principle so stated is correct, and its application to the evidence remains to be considered .

The facts are that about one o’clock in the morning of April 25th, 1897, Jackson Orr came to his home and entering a hallway knocked at his door and called for admittance to his wife, the appellant, who was in the room ; that Jesse Sugars was in the room with appellant, and when Jackson knocked he drew his pistol, bolted the door and threatened to shoot appellant if she opened it. After knocking again and failing to gain admittance Jackson went into tlie yard near a window of the room, when Sugars fired through the window, jumped from it and ran away. Immediately afterwards Jackson was found dead lying four or five feet from the window with a bullet hole through his head. Against the theory of appellant that the firing was at random and merely for the purpose of frightening the besieging husband, there is in the fatal result of the shot strong evidence of a careful aim.

The cause was tried without a jury, and a special finding of the facts was made .by the court, wherein, among other things, it was found that the death of Jackson Orr “was from a pistol shot fired by one Jesse Sugars intentionally at the said Jackson Orr.” We think the conclusion reached by the circuit court was correct.

The affidavit' of . appellant allowed in evidence for appellee was admissible not for the purpose of impeaching her, but as the admission of a party to the suit, though it did not differ materially from her testimony on the trial.

The affidavit of the witness Mitchell Orr corresponded substantially with his oral testimony, and could not have altered the findings of fact. The cause being tried without a jury its admission, even if erroneous, was obviously without injury to appellant.

Affirmed.