Collins v. Fidelity & Casualty Co.

Ellison, J.

This action is based on a policy of accident insurance, containing the following, provisions :

‘ ‘The Fidelity and Casualty Company, in consideration of the warranties in the application for this policy and of an order for moneys therein specified on the paymaster, does hereby insure Cornelius Collins in the sum of $2,000, the principal sum, against bodily injuries sustained through external, violent and accidental means as follows: If death shall result within ninety days from said injuries, independently of all other causes, the company will pay the principal sum of this policy to Kate Collins, his wife, if surviving. *256 * * This insurance does not cover disappearances nor war risk, nor voluntary exposure to unnecessary danger.”

Plaintiff is the widow of said Cornelius Collins and recovered the full amount of the policy. Cornelius was killed with a pistol fired by one Simon Kennedy. The defense consisted of two points, viz.: that deceased was not killed by “accidental means;” and that he was killed by “voluntary exposure to unnecessary danger.”

As to voluntary exposure to danger, we need merely say that there was evidence tending to show that deceased wrongfully brought on the difficulty, which he must have known might likely result fatally, and which did result in his death, and did thereby expose himself to unnecessary danger. But there was also evidence in plaintiff’s behalf, tending to show that he did not bring on the trouble and that the difficulty was without his fault and not within his expectation. In such instance, though there is an exposure to danger, it is not a voluntary exposure. Each of these views were submitted to the jury and we must accept the verdict as supporting the plaintiff’s contention.

Since the deceased did not voluntarily expose himself to unnecessary danger, and since his death resulted from a pistol shot intentionally fired at him by Kennedy, we are led to the conclusion, under our decision in the case of Phelan v. Traveler’s Ins.'Go., 38 Mo. App. 640 , that the death was an accident, as that term should be applied to the deceased. We held in that case that the term, “accidental means” applies to the conduct of the insured, as distinguished from the party doing the injury. An injury not anticipated and not naturally to be expected as a probable result, by the insured, though intentionally inflicted by another, is an accidental injury within the terms of the *257 policy. Ins. Co. v. Bennett, 90 Tenn. 256 . In addition to the Phelan and Bennett cases are a number of others collected by counsel. Hutchcraft v. Traveler’s Ins. Co., 87 Ky. 300 ; Richards v. Ins. Co., 89 Cal. 170 ; Equitable Ins. Co. v. Osborne, 90 Ala. 201 ; Lovelace v. Ins. Co., 126 Mo. 104 .

A death may be the result of an intentional and not accidental act of the party doing the injury and yet be an accident, as that word should be construed in the policy, in its application to the deceased.

We have examined the authorities cited by defendant in connection with the argument advanced, but we do not think they apply to the facts of this case. The instructions by the court were in accordance with what we have written. The principal one for defendant set forth clearly the theory upon which defendant tried the case and gave the jury full opportunity to decide upon the culpability of the deceased concerning the difficulty. Some portions of the first instruction for plaintiff we concede might be the subject of criticism, but when the whole instruction is read and considered with that for defendant, the jury could not have been misled.

The judgment will be affirmed.

All concur.