Brown v. Supreme Lodge Knights of Pythias

83 Mo. App. 633 | Mo. Ct. App. | 1900

BIG GS, J.

The plaintiff is the widow of W. C. Brown. She sues on a benefit certificate issued by the defendant order on the life of her husband for the sum of two thousand dollars. The certificate was issued in 1889. In 1896 the defendant adopted a by-law that if the death of a member of the order holding a certificate of insurance “shall result from suicide, either voluntary or involuntary, whether such member shall be sane or insane at the time, or if such death shall be caused or superinduced by the use of intoxicating liquors, narcotics or opiates, or in consequence of a duel or at the hands of justice, or in violation of any criminal law, then the amount to be paid upon such member’s certificate shall be a sum only in proportion to the whole amount as the matured life expectancy is to the entire expectancy at date of admission to the endowment rank, the expectation of life based upon the American experience table of mortality in force at the time of such death to govern.” The defense was that the death of Brown resulted from an injustifiable assault made by him on one Rodgers, and that under the aforesaid by-law and the contract of insurance the defendant was only indebted to plaintiff on account of the certificate in the sum of $585.50, which amount it tendered into court. There was a trial before the court without a jury. There was evidence tending to prove that the deceased and Rodgers engaged in a fist fight; that the deceased was the aggressor, and that the injuries he received in the fight resulted in his death about twelve hours afterwards. At the conclusion of the evidence the court gave the following instruction at the request of the defendant, to wit:

“The court declares the law to be that if it finds from the-evidence in this case that William C. Brown assaulted John Rodgers without provocation, and that during such assault he received wounds at the hands of said Rodgers, from which he died, then they must find for the plaintiff in the sum only of $585.50; and in this connection the court further declares the law to be that mere words never justify an assault.”

The plaintiff asked no instructions. The judgment was for the full amount of the policy. The defendant appealed, and its counsel urges that all of the evidence in the case tends to prove that the assault by Brown on Rodgers was without provocation.

Under our views of the law we need not discuss the evidence as applicable to the instruction given by the court. In our opinion the evidence failed to establish any defense to the action. In the case of Harper v. Phoenix Ins. Co., 19 Mo. 506, one of the conditions of the policy was that if the insured “shall die in the known violation of a law of the state,” then the policy should be void. In interpreting this clause in the contract the court applied the maxim noscitur sociis, and held that it should be construed only to extend to instances in which the party died in the commission of a felony. That case was properly decided under the rule invoked, for in the other clauses of the contract which stipulated for the avoidance of the policy no offense below the grade of a felony was mentioned. Thus in one of the clauses .it was provided that “if the party shall die by the hands of justice,” the policy should be forfeited. If the forfeiting clauses of the policy in the case in hand were the' same the liability of the defendant under the foregoing decision would be beyond dispute, for the deceased was only guilty of striking Rodgers with his' hand, which was a misdemeanor. But the forfeiting clause here under consideration is found in company with another, which provides that if the death of Brown “shall be caused or superinduced by-the use of intoxicating liquors, etc.,” which offense is neither a felony nor misdemeanor. This renders the reasoning in the Harper case inapplicable. Being therefore free to dispose of the case according to our conceptions of the law we are inclined to adopt the reasoning of this court in the case of Wolff v. Ins. Co., 5 Mo. App. 236. Under that decision the meaning of the clause here ought not to be confined to a case where a member loses his life in the commission of a felony. Neither should it be applied where he suffers death by reason of a misdemeanor in the fullest sense of that word, but it should be construed to embrace any act of the insured which might be denominated a crime, and if his offense was of that character, whether it was a felony or not, and he lost his life in consequence of it and under circumstances which made the killing justifiable homicide, then a forfeiture ought to be declared. The facts of this case and of the Wolff case, supra, illustrate our meaning. In the latter case the insured attacked his adversary in the dark when the latter was not anticipating trouble. 'He seized him by the throat and choked him in a violent manner, and in attempting to defend himself his victim mortally wounded him. As was justly said in substance by this court, no man in this western country can commit such an act of violence under such circumstances without taking his life in his own hands. Yet the offense of the deceased was only a misdemeanor, but the assault was of such a character and was committed under conditions which rendered the killing justifiable homicide. This certainly presented a case within the meaning of the forfeiting clause of the contract. It was a risk which the insurance company did not assume but contracted against. In the case at bar the facts are very different. The undisputed evidence shows that Brown struck Rodgers with his hand; that the blow was struck in a well-lighted room; that the parties clinched; that Rodgers threw Brown, and that while they were down Rodgers inflicted injuries on Brown’s head the effects of which is supposed to have caused his death. It can not be supposed that such a case as these facts present was within the contemplation of the contracting parties. As was said by Judge Scott in the Harper case, supra, “if one assaults another with his open hand, and is thereupon instantly shot down, he does not die in the known violation of a law.” ■ So Ave hold that the question of the lack of provocation for the assault is immaterial, for the judgment is for the right party regardless of it.

Again, the judgment is for the right party for the further reason that BroAvn’s contract of insurance was not affected by the subsequent by-law. The new law as applicable to existing contracts of insurance is unreasonable, and hence inapplicable, for to apply it would be to materially change the contract without the consent of the insured. We have decided the identical question at this term of the court in the case of Smith against this defendant.

AVith the concurrence of the other judges the judgment of the circuit court will be affirmed. It is so ordered.