Interstate Business Men's Acc. Asso. v. Adams , 178 Ark. 856 ( 1929 )

STATEMENT OF FACTS.

This suit was brought by appellee, beneficiary in the policy, to recover the indemnity provided for accidental death of her husband, the insured.

It was alleged that the policy was duly issued and in force at the time of the alleged accidental death of her said husband, and that it insured the said W. E. Adams against loss of life in the sum of $2,000 "by reason of physical injury effected by accidental means independently of all other causes, upon the terms contained in part 1 thereof, and subject to the provisions and upon performance of the conditions in parts 3, 4 and 5 thereof."

It was further alleged that, while Adams was at the home of W. O. Giles, "he was accidentally killed by being shot with a rifle in the hands of said W. O. Giles," that due notice of the death had been given and proof of loss had been furnished, and the defendant had failed to pay same. Prayer was made for judgment for the amount of the policy, penalties, and attorney's fees.

The answer admitted the execution of the policy upon the terms contained in parts 1 and 2, "subject to the provisions and upon the performance of the conditions of parts 3, 4 and 5 of said policy." Denied that the insured was killed accidentally by being shot with a rifle in the hands of Giles and that plaintiff, on account of his death, became entitled to the sum of $2,000 under the terms of the policy, and alleged that, because of Adams' conduct, Giles shot and killed him intentionally.

Paragraph 3 of part IV of the policy provides:

"The insurance provided for loss by accidental means shall be reduced and the liability of the association shall not exceed * * * (2) $100, if the loss be sustained as the result of the discharge of a firearm, unless the claimant shall establish the accidental cause of the discharge by the testimony of a person other than the insured or the claimant, who saw the cause in operation at the time of the discharge * * *."

On motion, over appellant's objection, the court struck out of its answer paragraph 2, pleading the part of the policy "(2) of paragraph 3 of part IV of the said policy," holding it void as against public policy, and as contrary to the laws of the State, 6156 of C. M. Digest. The order further recites that appellant had attempted to plead said clause as one of its defenses, and was not entitled under the law so to do, and ordered said paragraph struck out and said defense not allowed.

A motion for postponement of the trial was filed on the grounds of surprise, after W. O. Giles, who, it was alleged, had shot and killed the insured, had refused to testify about the killing on the witness stand, claiming his exemption on the ground that his answers might tend to incriminate him, it being alleged in the motion that witness had twice told appellant's attorneys all about the killing, and that he had shot the deceased in necessary self-defense, and would so testify. The motion also recited the names of the other witnesses as given to appellant's attorneys by Giles, and that none of them were present when the shooting occurred. It appeared also that all of these witnesses, except one, were present at the trial.

Appellee testified that she was the widow of the insured, and introduced the policy in evidence; that her husband was killed on July 21, 1927; that because of her condition the doctor would not permit her to see him; her baby was born six weeks after the death; the body was brought to her mother's house, and taken from there to the church.

It further appeared from the testimony that the insured was lying dead on the porch of the home of W. O. Giles when the witnesses appeared, and that he had been shot with a rifle in the belly, about two inches to the left of the navel.

The sheriff stated he was called to the home of Giles; that several were present when he viewed the body, naming some of them, and the body was lying just at the right of the steps as you go into the house, on the edge of the porch, eight to ten feet from the screen door. He could not see whether it was lying where it had fallen after the shooting. He did not arrest Giles at the time, but told him to report, and he came in the next day.

The testimony on the part of appellant was voluminous, tending to show the unfriendly feeling that had existed between Giles and the deceased. Several of the witnesses had come to the house after Adams was killed and while the body was still lying on the porch, and there was a single hole on the wire screen door leading from the porch to the room, indicating that it was fired from inside the room, and that the body had the appearance of lying where it had fallen.

The testimony also showed that Giles and the deceased had been riding around together during the day, first in Giles' car and in the car of deceased.

The court gave, over appellant's objections, two instructions, the giving of which was assigned as error, and refused to give certain requested instructions and to instruct a verdict for defendant, and from the judgment on the verdict for the amount of the policy this appeal is prosecuted. (after stating the facts). It is earnestly urged that the court erred in refusing to grant the continuance and in striking out the defense of the limitation of the amount that could be recovered under the policy for death resulting from a discharge of a firearm, unless shown to be accidental by an eye-witness of the transaction other than the insured or beneficiary.

It will suffice to say, in answer to the assignment of error for denying the motion for a postponement, that this motion also disclosed that there were no witnesses to the killing of the insured except Giles, who, it was alleged, had shot him, and that Giles had refused to testify in the case as he agreed to do, claiming exemption, as he had the right to do, because his answers or testimony might tend to incriminate him. There was no reason to think that he would change his mind thereafter. The motion itself disclosed that there was no probability of producing any other witness who had seen the occurrence, in fact that none others did see it.

This court has concluded, however, that the court erred in striking out the defense alleged, limiting appellant's liability under the clause of the policy to the payment of $100 only for the loss sustained by the death of the insured as a result of the discharge of a firearm, there being no testimony of any witnesses showing the conditions at the time of the shooting. This clause is not in any wise in conflict with our statutes, 6156 of C. M. Digest, declaring that no policy of insurance shall contain any conditions or provisions which shall, directly or indirectly, deprive the insured or beneficiary of the right to trial by jury of any question of fact arising under such policy, and that all such provisions or condition is are void. The clause of the policy relied on as a defense is not in conflict with this statute, and is but a limitation of the liability on a risk that could have been excepted altogether from the policy. The liability on the risk to the insured resulting from the discharge of a firearm was limited, as specifically provided, to the sum of $100, unless the cause of the injury or death was established by the testimony of some witness other than the insured or claimant. This language of the policy is susceptible of no reasonable construction that would require the payment by the insurer of more than the limited amount designated for accidental death of the insured resulting from the discharge of a firearm, unless proved by the testimony of an eye-witness, as provided therefor. This is not an attempt to control the action of the courts in admission of evidence or in the effect or weight to be given it, nor to oust the court of jurisdiction over such a contract. It does not affect the right of recovery, but only limits the amount that can be recovered, in the absence of the establishment of the cause by the kind of testimony designated, a matter about which the parties had the right to contract, as already said, and to except such risk entirely if they chose to do so.

We do not regard the decision of the Oklahoma case of Modern Woodmen of A. v. Michelin, 101 Okla. 217,225 P. 163, as an authority against our conclusions above announced, and certainly entitled to no such conclusive determining effect as appellee insists should be accorded it. Neither do we agree with the contention that the provision of the policy is void as against public policy. It is but a limitation of the amount of the recovery, unless the cause of the accidental injury is shown by the kind of evidence designated, to a fixed sum, in a matter the parties had the right to contract about, and which could have been excepted entirely from the policy. Ellis v. Interstate Business Men's Accident Association,183 Iowa 1279, 168 N.W. 212, and note L.R.A. 1918F, page 420; and especially Lundburg v. Interstate Business Men's Accident Association, 162 Wis. 474, 156 N.W. 482; Moses v. Ill. Commercial Men's Association,189 Ill. App. 440.

This provision of the policy being valid, appellant was entitled to rely upon it in defense of the suit, and the court erred in holding otherwise and striking out that part of the answer setting it up.

Since the case appears to have been fully developed, and shows that there was no eye-witness to the transaction resulting in the death of the insured, except Giles, by whom it was alleged he "was accidentally killed by being shot with a rifle," and refused to testify about the matter, as he had the right to do, on the trial, and there does not appear to be any reason for remanding the cause, the judgment will be modified in accordance with the stipulation or provision in the contract limiting the liability to the recovery of $100, and, as modified, will be affirmed. It is so ordered.