Rider v. Preferred Accident Insurance ( 1918 )

Kruse, P. J.:

The policy provides, in case of injury, fatal or otherwise, resulting from causes therein stated, “ or from injury, fatal or otherwise, intentionally inflicted upon the insured by himself or by any other person, * * *, the Company’s liability shall be one-tenth the amount which would otherwise be payable under this policy.”

The complaint alleged that the insured received a gun shot wound from a firearm, gun and revolver fired by one Edward Sackett, resulting in the death of the insured. It alleges in specific terms that the bodily injuries were not sustained by the insured from any of the causes to which the one-tenth clause of the policy applies, save that relating to injury intentionally inflicted upon the insured, and as to that it alleges that at the time of the infliction of such bodily injuries by Sackett upon the insured, Sackett was insane and in such a diseased and deranged condition of mind as to render him incapable of distinguishing between right and wrong in relation to said act, which caused the death of the insured.

But in submitting the case to the jury other elements of incapacity were stated as necessary to take the case out of the effect of the one-tenth provision in the policy. The jury were told that the inability of Sackett to "appreciate that the act was morally wrong, was immaterial; that if the. act of Sackett in firing the shot was a voluntary act, and that the injury was inflicted intentionally upon the deceased, there could be no recovery for the full face of the policy; but if the jury found that Sackett, at the time of the shooting, was irrational, of unsound mind, and did not know the nature and quality of his act; that he did not retain at the time sufficient power of mind and reason to understand the physical nature and consequences of the act by which he destroyed the life of the insured, and it was involuntary and without will committed by him, then the jury may find that the injury was intentionally inflicted, and the plaintiff may recover the full amount of the policy.

This was repeated, in substance, several times, and finally at the close of the main charge the jury were again instructed, at the request of counsel for the defendant, that if the shooting of Rider was the voluntary and willful act of Sackett, and the latter at the time had sufficient power of mind and reason to understand the physical nature and consequences of such act, and had at the time a purpose and intention to cause the injury or death of the insured, then the limitation in the policy is effective, and the plaintiff is not entitled to recover more than $750.

I think the rule of law applied was substantially correct, but the facts are lacking to make it applicable to this case. The undisputed evidence of the' experts, both those called by the plaintiff, as well as those called by the defendant, is to the effect that Sackett", though insane, intended to shoot and injure or kill the insured; that he understood the physical consequences and results of such shooting. This opinion was based, not only upon the facts assumed most favorable to the plaintiff, but upon the personal examination of Sackett by the plaintiff’s experts. I think the opinion is not only justified by the evidence, but that the undisputed facts and circumstances justify no other conclusion.

I think the defendant’s motion made at the trial, to direct a verdict in favor of the plaintiff and against the defendant for the sum of $750, with interest from March 11, 1916, the date of the service of proof of claim, being one-tenth of the face of the policy,- should have been granted, and that the judgment should be reduced to that amount, with costs of this appeal to the defendant.

All concurred, except Foote, J., who dissented in an opinion and voted for affirmance.