The primary question presented by this appeal is upon the interpretation and construction of that clause of the insurance policy which limits the amount payable thereunder to one-fifth the face of the policy “where the injury causing the loss results wholly or in part * * * from the intentional act of the insured or any other person.”
What is an “intentional act” may seem a matter оf very simple solution to the intelligent layman, but to the judge who is familiar with the learning of the books, and who ventures into the metaphysicаl subtleties which incumber judicial definition, the question is full of difficulty.
In its present application, the phrase ought to be given that simple and common sense meaning which the parties to the contract intended it should express.
Obviously, we think, this meaning is not to be determined upon a consideration merely of the criminal responsibility of the actor, nor of his moral accountability according to the refined principles of psychology.
If the actor has intelligence enough to understand the physical nature and consequences of his act, and, without the compulsion of an irresistible physical force or
It follows, from what we have said, that either the insanity or the drunkenness of an actor may be of such a degree as to lead to the conclusion that an act in question was not his intentional act.
Where, as here, the evidence tends to show not only the drunkenness of the actor causing the injury, but also the degree of his drunkenness, and exhibits also contemporaneous conduct of an equivocal character, his capacity to do an intentional act is very clearly a question of fact for the jury.—Armor v. State,
In a number of charges given at the instance of plaintiff, and also in his oral charge, the trial judge instructed the jury in effect that the killing of Cunningham, the insured, by McGuffin, was not intentional unless Me
We are indebted to the briefs of counsel for a full and helpful discussion of this theory of the case. Upon very thorough consideration we are entirely convinced of its unsoundness. We find no warrant in the language of the policy for such narrow and exacting construction of the phrase “intentional act.” We think it is wholly immaterial whethеr or not Cunningham was known to McGuffin, or whether, knowing him, McGuffin mistook him for some one else whom he intended to shoot. If in fact, having the requisite mеntal capacity, he intended to shoot the human being who1 accosted him and threatened to obstruct his flight, his act was an intentional act, and the killing was an intentional result, no matter what he may have supposed was the name or personal identity of his viсtim. Such a shooting is in no sense accidental so far as the assailant is concerned, and it falls within the restrictive language and purpose of the contract.
' We infer that the trial judge was influenced to his conclusion by the case of Utter v. Travelers Ins. Co.,
Morse, J., writing the opinion, said: “It seems to me that the design intended by the terms of this policy must be the design that intended the actual result accomplished, and not the design of the act itself, which act resulted in the killing of one contrary to the dеsign of the act. If, when Berry fired this shot, he did not know the man he fired at was Utter, and did not intend to kill Utter, it cannot be said that Utter lost his life by the design оf Berry.”
It might be difficult, if not impossible, to refute the logic of the reasoning upon which the decision in the Utter Case is founded. That case, however, is decisively distinguished from the present case by the language of the policy there construed. The liability requirement that the deаth or injury of the assured should not be the result of design is obviously of narrower import than a requirement (as here) that it should not be the result оf an intentional act. If the Utter Case is not thus distinguishable from this case, we are constrained to regard it as unsound.
So far as the facts of the рresent case are concerned ■ — assuming that McG-uffin had the mental capacity to do an intentional act — there is nо support for the theory that he supposed he was shooting at some particular person other than Cunningham. On the contrаry, it clearly appears that he was fleeing from arrest, and that he was shooting at anybody and everybody who interferred with his purpose to get away. Hence the principle of the Utter Case, even if abstractly correct, could not be applied in this case. A possible supposition is not the equivalent of a reasonable inference from the evidence.
For the érrors pointed out, the judgment will be reversed, and the cause remanded for another trial.
Reversed and remanded.