193 P. 263 | Cal. Ct. App. | 1920
On the seventeenth day of August, 1916, the defendant executed and delivered to Hilda E. Throop two policies of insurance against loss resulting from *323 bodily injuries to her effected directly and independently of all other causes, through accidental means (suicide or any attempt thereat, whether sane or insane, not covered); the beneficiary of said policies in the event of death thereunder being the plaintiff Charles B. Throop. This action is brought upon those policies to recover the compensation therein named on account of the death of Hilda E. Throop on the thirteenth day of September, 1916, occurring by reason of bodily injuries sustained in a manner within the terms of said policies. Upon issues properly framed the court found that "on September 13, 1916, said Hilda E. Throop was killed in the county of Riverside, state of California, by means of the discharge of a loaded shotgun in the hands of the plaintiff, and actually discharged by the plaintiff herein; but that said Hilda E. Throop did not thereby sustain bodily injuries, or bodily injury, which were effected directly and independently or directly or independently of all other causes through accidental means; that the discharge of said gun, as aforesaid, was occasioned by the gross negligence of said plaintiff and because and by reason of the fact that said plaintiff failed to use and did not use due or ordinary or any care or caution in handling the same; that said Hilda E. Throop died on the same day, to wit: September 13, 1916, and that her said bodily injuries, or injury, were not caused by suicide or any attempt thereat on her part." Judgment was entered in favor of the defendant and the plaintiff appeals therefrom.
Appellant contends that the judgment should be reversed, (1) because the findings show that the death was caused by accidental means; (2) because the findings are inconsistent and conflicting. The other points relied upon for reversal relate to alleged insufficiency of the evidence and need not be considered on this appeal, if either of the foregoing stated contentions of appellant is sustained.
[1] The finding that the said Hilda E. Throop "did not thereby sustain bodily injuries, or bodily injury, which were effected directly and independently or directly or independently of all other causes through accidental means," considered separately and apart from the remainder of the finding, is sufficient to support the judgment. The real question presented is whether or not the finding as last above quoted is necessarily inconsistent with the probative fact *324
thereinafter stated. That the two propositions cannot both be true is to our minds very clear. The fact found, that the discharge of the gun was occasioned by the gross negligence of the plaintiff and because and by reason of the fact that the plaintiff failed to use and did not use due or ordinary or any care or caution in handling the same, excludes the possibility of any intentional discharge of the gun, and compels the conclusion that the injuries were effected solely by accidental means. "If the probative facts found were such as to necessarily overcome the finding of the ultimate fact, the latter could not prevail." (Estate of Hill,
To meet the contingency that the court might decide as above indicated, respondent contends that under the finding hereinabove quoted the plaintiff was guilty of involuntary manslaughter in that the discharge of the gun by the plaintiff, even if the same was a lawful act, was the commission of an act which might produce death, "in an unlawful manner, or without due caution and circumspection" (Pen. Code, sec. 192); that this conduct of the plaintiff was subject to punishment by imprisonment in the state prison and constituted a felony; and that a party cannot in any case recover insurance money payable on the death of a party whose life he has feloniously taken. In support of the claim that, under these circumstances, the plaintiff will not be permitted to recover, we are referred toDrown v. New Amsterdam Casualty Co.,
[2] The rule which, in our opinion, should prevail in this case is clearly stated in Schreiner v. High Court of IllinoisCatholic Order of Foresters,
Being of the opinion that the judgment herein is based upon a finding which is inconsistent and conflicting on the principal issue upon which the rights of the parties herein are dependent, we conclude that the judgment is not supported by the findings.
For that reason the judgment is reversed.
Shaw, J., and James, J., concurred.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on November 18, 1920.
All the Justices concurred.