91 Ill. App. 363 | Ill. App. Ct. | 1900
delivered the opinion of the court.
But two questions are presented upon this appeal which it is necessary for us to consider, viz., first, was the policy avoided by false warranties by the insured, and second, did the insured die in consequence of his own criminal action, within the meaning of the provision of the policy.
We are of opinion that the right of action can not be defeated upon the ground first noted. While there is evidence as to the ages of the two brothers, whose ages were given by the insured, which would, if credited, show that the representations of the insured were false, yet that evidence was given by the father of the insured, who did not know his own age and who testified by merely assenting to the statements of counsel as read from an affidavit. We are not prepared to hold that the learned trial judge, who saw the witnesses and heard the evidence, was in error in finding that no sufficient showing was made that the representations by the insured in this respect were false. That there could have been no motive for such misrepresentations is apparent, for the age of one brother was inaccurately given, if inaccurate at all, as two years too young, while the other was given two years too old. The evidence as to other brothers and sisters is conclusive that the written answers are false. But there was evidence which warranted the trial judge in finding that no such answers were made to the medical examiner of appellant, and that the answers were improperly written by the medical examiner and signed by the insured upon the supposition that they were accurate, so far as he had represented anything to the examiner. A finding to this effect would relieve the insured from the effect of the false statements and they would constitute no defense to the action on the policy. The Royal N. of A. v. Boman, 177 Ill. 27; Tarpey v. Security Trust Co., 80 Ill. App. 388; affirmed in 182 Ill. 52.
The second contention of appellant’s counsel is that it appears from the evidence that the insured died in consequence of his own criminal action, and therefore under the terms of the contract of insurance there can be no recovery beyond the amount, paid for premiums. We are of opinion that this contention must be sustained. It is true that there was some slight conflict in the evidence as to the fact of Haley’s participation in the robbery. But the evidence is overwhelming to the effect that he, together with King, had robbed Britton a few moments before he ivas shot. Whatever conflict may have arisen by reason of his affidavit and King’s testimony is disposed of by the frank admission of counsel for appellee when in his brief he admits that the insured was a party to the robbery. The question is, then, was the shooting by which he was killed a consequence of his criminal action. He was shot by a police officer a few minutes after the robbery, while attempting to escape with the money ivhich he had taken from Britton. How can it be fairly held that he ivas not engaged in a criminal act at the very moment of the shooting, viz., carrying away the money of another which was the proceeds of the robbery of that other? Britton, the man robbed, had never lost sight of Haley from the time of the robbery until he was accosted by the officer. Whether the officer actually had his hand upon Haley and formally arrested him before he ran away or not, in any event Haley, in trying to escape with Britton’s money, which he had by reason of having robbed Britton, was guilty of a criminal act, and in the course of it and in consequence of it he was killed. The very going away with the property of Britton •was the continuation of the crime. Stinson v. The People, 43 Ill. 397.
We are of opinion that it would be a strained and unsound process of reasoning by which it could be concluded that the brief interval of time between the robbery and the shooting, during which the insured was making off with the fruits of the robbery, so separated him from the criminal act as to obliterate all relation between the criminal act and the 'killing. And so far as the case of Griffin v. West M. B. Ass’n, 20 Neb. 620, holds to that effect, we are unwilling to adopt its reasoning. The Griffin case seems to stand alone as an authority for any such limited application of the term, “ in consequence of,” and it is distinctly disapproved by the author in 1 May on Insurance, Sec. 327. See, also, 1 Am. & Eng. Ency. (2d Ed.), p. 321, note 1. Against the authority of this case are various decisions, among which are: Murray v. N. Y. L. Ins. Co., 96 N. Y. 614; Bloom v. F. L. Ins. Co., 97 Ind. 478; Hatch v. Mut. L. I. Co., 120 Mass. 550.
In the New York case the provision of the policy was that “ if the assured shall die in consequence of * * * the violation of the laws,” etc. The insured was killed while escaping from an affray in which he had been the wrongful assailant. There was a conflict in the evidence as to whether the shot was fired voluntarily by the party assaulted or accidentally. The court held that it was immaterial whether it was accidental or not, for in either case •the death was the consequence of the violation of law, ■within the meaning of the contract of insurance. There, as here, it was argued that death under the circumstances could not, in a legal sense, be attributed to the violation of law which had preceded it. But the court held against this contention, saying:
“To exempt the company must the death result from some peculiar and special risk connected with the commission of crime % It seems to us not, and that it is sufficient to bring a case within the condition, if there is such a relation between the act and the death, that(the latter would not have occurred at the time if the deceased had not been engaged in the violation of law. * * * Whether, therefore, the firing of the pistol wa.s intentional or not, or whether Murray ha,d or had not abandoned the combat, the jury, upon the evidence, were justified in finding as they did, by the general verdict, that the assured died in consequence of a violation of the law.”
In the Indiana case the court said:
“ While the unlawful act of the assured must tend in the natural line of causation to his death, in order to work a forfeiture, it is not necessary that the act should be the direct cause, nor that the precise consequences which actually followed could have been foreseen. It is enough if the act is unlawful in itself, and the consequences flowing from it are such as might have been reasonably expected to happen, for in such a case the ultimate result is traced back to the original proximate cause.”
The Massachusetts case goes upon a still broader ground, and asserts in effect that the risk arising from an unlawful undertaking is one which public policy will not permit to be covered by insurance.
We are of opinion that the fact that the insured was killed by a police officer while attempting to arrest him for the crime of robbery which he had committed, is of itself enough to fall within the provision of the contract of insurance. And there would seem to be no question that when the insured was unlawfully carrying away the fruits of the robbery at the precise moment when shot, and the shooting which caused the death was done in an attempt of an officer of the law to stop him and arrest him, the killing was in consequence of the criminal action of the insured.
There can, therefore, be no recovery in this action beyond the amount of premiums paid, as provided by the terms of the policy. It is undisputed that the premiums paid aggregate $318. The judgment of the Circuit Court is reversed and judgment will be entered here for appellee against appellant for the sum of $318. The costs in this court will be adjudged against appellee. Reversed, with judgment in this court.
