| Ark. | Dec 10, 1904
(after stating the facts.) Is a death received while retreating from a personal difficulty (and not retreating for the purpose of gaining advantage ground to renew'it), where the recounter is begun by an assault by the deceased upon his slayer with a weapon capable of inflicting great bodily harm or death, according to its use, a death within the meaning of an insurance clause exempting against liability for a death “in violation or attempted violation of any criminal law?”
Instruction numbered four said it was not, and the appellant asked instruction numbered five that it be declared within the exemption. The cases on this exact question are not numerous, but they are well considered, and come from courts of high standing. The following authorities sustain the instructions given by the circuit court. Harper v. Phoenix Ins. Co., 19 Mo. 506" date_filed="1854-03-15" court="Mo." case_name="Harper's Administrator v. Phœnix Insurance">19 Mo. 506, reiterated in Overton v. Ins. Co., 39 Mo. 122" date_filed="1866-10-15" court="Mo." case_name="Overton v. St. Louis Mutual Life Insurance">39 Mo. 122; Cluff v. Mut. Benefit Life Ins. Co., 13 Allen (Mass.), 308, reaffirmed in Cluff v. Mut. Benefit Life Ins. Co., 99 Mass. 318; and Bradley v. Mut. Benefit Life Ins. Co., 45 N.Y. 422" date_filed="1871-05-05" court="NY" case_name="Bradley v. . the Mutual Benefit Life Ins. Co.">45 N. Y. 422.
It is insisted that, if there is a causative connection between the assault and the death, then the death is the proximate result of the assault. Such reasoning contains the fallacy that an assault will be repelled with more than lawful force. Such is often, perhaps usually, the rule where blood is hot, and the strength sufficient, or the weapon handy enough. But such is not the result naturally to be expected under.the law. An assault calls for a repulsion of it by just such force as necessary to overcome it, and more than that is unlawful, and unlawful consequences are not to be presumed to follow the act. When Bradley attacked Morscheimer with a piece of iron, then Morscheimqr was justified in overcoming that attack, and, if necessary to overcome it, in taking Bradley’s life, and a death resulting while so lawfully resisting the attack would be the natural result expected to flow from such attack, and there would be a causative connection between the assault and the death; in other words, the attack would then be the proximate cause of the death. Cases applying the doctrine of causative connection between an unlawful act and the death, the latter being held to be within the consequences flowing from the unlawful act, are cited. Bloom v. Franklin Life Ins. Co., 97 Ind. 478" date_filed="1884-10-28" court="Ind." case_name="Bloom v. Franklin Life Insurance">97 Ind. 478; Murray v. N. Y. life Ins. Co., 96 N.Y. 614" date_filed="1884-10-07" court="NY" case_name="Murray v. . New York Life Ins. Co.">96 N. Y. 614, and others of kindred nature in appellant’s brief.
The doctrine of the cases referred to as sustaining this instruction does not impinge upon the established principles announced in those relied upon by appellant. For instance, take the case of a husband killing the paramour of his wife; if caught in the act of adultery, the paramour dies “in violation of law;” if killed subsequently, he dies as the natural result of his unlawful act, in consequence of it, and as a consequence naturally to be expected, and this is true whether killed an hour or a year after the adultery, and yet it is held, and properly so, that'the paramour is not killed “in violation of law,” within the meaning of an insurance contract. Goetzman v. Connecticut Mutual L. Ins. Co., 3 Hun (N. Y.), 515.
There must be a line drawn somewhere between consequences proximately, and those remotely, flowing from an unlawful assault; and the safe place to draw that line is where the law draws the line of lawful resistance to the unlawful assault. In a similar case to this one the Court of Appeals of New York, through Mr. Justice Rapallo, said: “So long as the evidence falls short of establishing that the homicide was legally justifiable, I can see no safe rule by which the court could be guided in deciding that the provocation proved was the cause of the killing, and in withdrawing that question from the consideration of the jury.” Bradley v. Ins. Co., 45 N. Y. 422. In' this case Bradley fled from the conflict, and received his death wound in the back while escaping. Clearly, Morscheimer was not legally justified in taking Bradley’s life then, and his act in so doing was unlawful. Therefore, the first violation of the law by Bradley was not the proximate cause of his death, but the subsequent unlawful act of Morscheimer in shooting his retreating assailant was the proximate cause. Therefore the instruction was correct, and the judgment is affirmed.