Opinion
No. 39860.
January 9, 1956.
1. Insurance — accidental injury or death — injury or death as result of unprovoked fight.
Where policy insures against accidental injury or death and does not exclude death intentionally inflicted by another, and the insured is injured or killed in a fight he did not provoke, and wherein he was not the aggressor, the injury or death of the insured is accidental within meaning of policy.
2. Insurance — same — injury or death where insured culpably provokes encounter — or is the aggressor.
Where one, who is insured against accidental injury or death, culpably provokes an encounter, or is the aggressor therein, in the course of which, or as the result of which the insured is killed or injured, the death or injury is not accidental within the meaning of the policy, but is the natural and probable consequence of insured's act.
3. Insurance — same — question whether insured provoked encounter — or was aggressor — for jury.
In action by beneficiary against insured on accident policy, question whether insured had provoked fight in which he was fatally injured and whether he had been the aggressor therein was for jury.
Headnotes as approved by Gillespie, J.
APPEAL from the Circuit Court of Marion County; SEBE DALE, Judge.
R.H. Dale, Sebe Dale, Jr., Columbia, for appellant.
I. It was error on the part of the Trial Court to overrule defendant's motion for a peremptory instruction at the conclusion of plaintiff's testimony because plaintiff's testimony wholly fails to sustain the claim of accidental death within the terms of the policy sued on. Scales v. Home Life Ins. Co. (Miss.), 89 F.2d 580; O'Bar v. Southern Life Health Ins. Co., 232 Ala. 459, 168 So. 580; Taliaferro v. Travelers' Protective Assn., 80 Fed. 368; Carroll v. Fidelity, Etc., Co., 137 Fed. 1012; Fidelity Casualty Co. v. Stacey's Exrs., 143 Fed. 271, 5 L.R.A. (N.S.) 657, 6 Ann. Cas. 955; Clay v. State Ins. Co., 174 N.C. 642, 94 S.E. 289, L.R.A. 1918B 508; Gaines v. Fidelity, Etc., Co., 111 App. Div. 386, 97 N.Y.S. 836; Metropolitan Casualty Co. v. Chambers, 136 Ark. 84, 206 S.W. 64; Prudential Casualty Co. v. Curry, 10 Ala. App. 642, 65 So. 852; Lovelace v. Travelers' Protective Assn., 126 Mo. 104, 28 S.W. 177, 30 L.R.A. 209, 47 Am. St. 638; Union Cas. Surety Co. v. Harroll, 98 Tenn. 591, 40 S.W. 1080, 60 Am. St. 873; Meister v. General Accident Corp., 92 Oregon 96, 179 P. 913; Equitable Accident Ins. Co. v. Osborn, 90 Ala. 201, 9 So. 869-70, 13 L.R.A. 267; 29 Am. Jur., Sec. 980 pp. 736-37; Anno. 26 A.L.R. 2d 392, 415; 1 C.J. 431; 14 R.C.L., Sec. 437 p. 1260. Henry Mounger, Hall Callender, Ernest Duff, Maurice Dantin, Columbia, for appellee.
I. The evidence abundantly supports the finding of the jury that Andrew Barnes was not the aggressor in the difficulty, and that his death resulted by accident, within the meaning of the policy of insurance. Mobile O. RR. Co. v. Cox, 153 Miss. 597, 121 So. 292; Crawford v. Bank of Seminary, 178 Miss. 129, 172 So. 750; Holliman v. Lucas, 202 Miss. 463, 32 So.2d 259; Campbell v. Willard, 205 Miss. 783, 39 So.2d 483; Fidelity Casualty Co. v. Johnson, 72 Miss. 333, 17 So. 2; Hutson v. Continental Casualty Co., 142 Miss. 388, 107 So. 520; Holmes v. American Natl. Ins. Co., 142 Miss. 636, 107 So. 867; Georgia Casualty Co. v. Alden, 136 Miss. 853, 127 So. 555; O'Bar v. Southern Life Health Ins. Co., 232 Ala. 459, 168 So. 580; Scales v. Home Life Ins. Co. (Miss.), 89 F.2d 580; 29 Am. Jur., Sec. 972 p. 732; Annos. 20 A.L.R. 1123; 116 A.L.R. 396; 30 L.R.A. 207.
This is a suit by the beneficiary in an insurance policy issued by appellant on the life of Andrew Barnes. Barnes was stabbed to death by L.C. Bass, and the appellee contends that the death of insured was the result "directly and independently of all other causes from accidental bodily injuries." The sole question is whether Andrew Barnes died as the result of an accident, within the meaning of the policy.
We review the facts for the purpose of determining whether the jury was justified in finding that Barnes was not the aggressor in the encounter in which he lost his life, and did not provoke the encounter. A considerable crowd was gathered in and around Addie's Juke Joint. L.C. Bass, Pearl Fortenberry and others were inside, while Andrew Barnes was standing outside. Bass wanted to dance with Pearl, but she declined. Both became angry and an argument started. Bass went outside and got a large stick about three or four feet long. Bass drew the stick on Pearl and she ran out of the building, pursued by Bass. In order to get away from Bass, Pearl ran behind Andrew. Up to this time Barnes had not participated in the trouble in any way. Barnes was between Pearl, who was behind him, and Bass, who was in front of him, with the stick raised in a hitting position. Some of the witnesses thought the stick was drawn on Pearl and some thought it was drawn on Barnes. In either event, Barnes was justified in believing that Bass was about to do him great bodily harm with the stick. At this instant, Barnes struck Bass in the head with a knife, turned away and started to his car. Just as he reached his car, Bass, who was mortally wounded by the stab wound in the side of his head, overtook Barnes and they "bearhugged" and fell and rolled on the ground. A number of others crowded around and five or six people were around or on top of Barnes. After they got off Barnes he was unable to speak, and died shortly thereafter from two stab wounds. Bass also died.
There was evidence on the part of appellant that Bass was not threatening Barnes when Barnes stabbed Bass, but the jury rejected this evidence.
(Hn 1) Where an insurance policy insures against accidental injury or death, and the policy does not exclude death intentionally inflicted by another, and the insured is injured or killed in a fight he did not provoke, and wherein he was not the aggressor, the injury or death of the insured is accidental within the meaning of the policy. 29 Am. Jur., Insurance, Sec. 972; Fidelity Casualty Co. v. Johnson, 72 Miss. 333, 17 So. 2; Cf. Holmes v. American National Insurance Co., 142 Miss. 636, 107 So. 867, and Georgia Casualty Co. v. Mills, 156 Miss. 853, 127 So. 555.
(Hn 2) On the other hand, where one is insured against accidental injury or death, and the insured culpably provokes an encounter, or is the aggressor therein, in the course of which, or as the result of which, the insured is killed or injured, the death or injury is not accidental within the meaning of the policy; for in such case, the injury or death is the natural and probable consequence of the act of the insured, and cannot be said to be accidental. 29 Am. Jur., Insurance, Sec. 980; Anno., 26 A.L.R. 2d 399.
(Hn 3) The fact issue was fairly presented to the jury on proper instructions, and it found that insured did not provoke the fight and was not the aggressor. There is no basis for us to disturb this finding.
Affirmed.
McGehee, C.J., and Lee, Kyle, and Holmes JJ., concur.