98 Tenn. 591 | Tenn. | 1897
This is an action on a policy which insured defendant in error against loss of life of her husband, resulting from “bodily injuries sustained through external, violent, and accidental means,” within the meaning of the policy and its conditions. Among the conditions is that “this insurance does not cover . . . voluntary exposure to unnecessary danger.”
The husband of defendant in error was killed by a pistol shot fired by one McNeal, and the main defense set up was that the death of Harroll occurred ' within the terms of this condition. The evidence in the case discloses that the deceased and McNeal were employees of a railroad leading into Memphis; that there had been more or less of bad feeling between them, breaking out into occasional quarrels, in which profane and insulting language was used by Harroll towards McNeal; that the morning of the homicide, and a very short time before it occurred, the parties met and agreed that they would stop quarreling, but that soon after this agreement was made the deceased gave an order to McNeal to perform some service about the train, then being made up, which the latter thought was beyond the scope of his duty, and therefore declined to obey, and thereupon the quarrel was offensively
Upon this evidence it was insisted by the insurance company, the death of Harroll was the result of voluntary exposure to unnecessary danger on his part. On the other hand, and in rebuttal of this statement of McNeal’s, the defendant in error introduced testimony strongly tending to show that the deceased, at the time of the shot, was in the act of ascending the steps of the car, with his left hand on the iron rod or railing, and his right arm hanging by his side, and that when he received the shot he lifted his right hand to his breast, where the
The first assignment of error is upon that part of the charge of the trial Judge in which he said to the jury, though they “believed from the evidence that the deceased was advancing on McNeal in a threatening manner at the time the latter shot him, yet this injury would be accidental as to Har-roll, if he did not know at the time, or had not reason to believe, McNeal was armed with a deadly weapon.” It is to be observed, in this paragraph of his charge, that the trial Judge was not dealing with the condition of the policy which has been before set out, as the one on which the defense is rested, but was instructing them on the subject of an accidental killing, and he properly said to them
He was unarmed, and, though he advanced with offensive words and a manner constituting a' challenge to fight, yet ignorant of the fact that there was a deadly weapon on the person of his adversary, and receiving no warning from him that he would shoot if the advance continued, Harroll had the right to presume, if the fight occurred, it would be carried on without the use of such a -weapon. Price v. State, 36 Miss., 531. And the death under such conditions would be accidental as to the assured, though the act producing it was intentional on the part of McNeal. Insurance Co. v. Bennett, 90 Tenn., 256; Lovelace v. Fidelity Insurance Co., 126 Mo., 104 (S. C., 30 L. R. A., 209).
It is next assigned for error that the trial Judge declined to give the special request: “If you find that the insured, Harroll, approached McNeal, cursing him, and applying to him a vulgar epithet, and that McNeal retreated, but Harroll continued to advance, with threatening demonstrations, although Mc-Neal warned him not to approach, and that then McNeal shot the insured, then the Court charges
It will be seen this request omits from the hypothesis presented, the elements of knowledge or reasonable apprehension on .the part of Harroll of the fact that his adversary was armed, and, on his continued approach, would shoot to kill. If granted, the trial Judge, in effect, would have told the jury, upon the case stated, that the death of the assured was the result of a voluntary exposure to unnecessary danger, although he neither knew, nor could reasonably have apprehended, that McNeal had a pistol which he would use upon him. The trial Judge was right in declining this request. A voluntary act is an intentional one; — one which the actor of his own will, with the power of choice, determines to do or perform. So this condition is to be read as the equivalent of one exempting the insurer from liability where death results from an intentional exposure of one’s self to unnecessary danger. Both terms imply some degree of knowledge or apprehension of the danger incurred and a purpose to take the risk. If the danger be concealed and unknown to the party who ultimately suffers from it, then it cannot be said he has voluntarily exposed himself to it. jBo constitute such exposure, one ‘£ must intentionally have done some act which reasonable or ordinary prudence would pronounce dangerous ’ ’ (Burkhead v. Travelers' Insurance Company, 102 Pa. St.,
In every case which -we have examined where this condition has operated to defeat a claim under the policy, the- assured had voluntarily or intentionally done some act which reasonable prudence would have pronounced dangerous and in which death had followed as a consequence. As an illustration of this class of cases, we refer to Travelers’ Insurance Company v. Jones, 80 Ga., 541 (S. C., 12 Am. St. Rep., 270), where a party going home at night knowingly left other and safe paths of travel and betook himself to a dangerous railway trestle; to Williams v. U. S. M. Assn., 133 N. Y., 366, where the assured sat down on a railway track when an engine moving towards him, was only twenty-five feet away, and 'to Tuttle v. Travelers’ Insurance Company, 134 Mass., 175 (S. C., 45 Am. Rep., 316), where the assured was killed by a train while running in front of it to take a train approaching him and moving on a parallel track. In all these cases the danger was so obvious that it should have been avoided by a man of ordinary prudence, and the exposure to it was voluntary and unnecessary. Under such circumstances the Courts have properly held that a death thus resulting falls
There are other assignments of error upon the Court’s refusal to give other special requests, but we find that such of them as correctly announce the law applicable to the case were embraced in the general charge, while others not so included were not pertinent or were unsound. These assignments are therefore overruled.
The judgment is. affirmed.