Baker v. Supreme Lodge Knights of Pythias

Smith, C. J., delivered the opinion of the court. The husband of appellant, who was killed some time prior to the institution of this suit, was a member of appellee order, and at the time of his death his life was insured therein in favor of appellant for the sum of two thousand dollars. This policy provided, among other things, that “If the death of the member. . . be caused or superinduced ... in consequence of a duel, or at the hands of justice, or in violation or attempted violation of any criminal law, then the amount to be paid on this certificate shall be a sum only in proportion to the whole amount thereof as the member’s matured life expectancy is to his entire expectancy at the date of this certificate; the expectation of life based upon the American Experi [386] ence Table of Mortality to govern.” Appellee having denied liability on the policy, this suit was instituted in the court below; and the defense of appellee thereto is that the death of appellant’s husband was caused or superinduced in consequence of a duel, and in the violation or attempted-violation of a criminal law. At the close of the evidence, upon request of appellee, the court instructed “the jury to find for the plaintiff the sum of seventy-two dollars and fifty-two cents, and six per cent interest thereon from May 23, 1911, to this date.” Appellant, being dissatisfied with the verdict and judgment entered in accordance with this instruction, appeals to this court.' It appears from the evidence that on the 23d day of May, 1911, a man named Lester came to Baker’s place of business in the town of Batesville, and asked him if he (Baker) had killed his (Lester’s) dog. Baker replied that he had, but that it was done accidentally, whereupon Lester proceeded to curse and abuse him, applying to him several vile and vulgar epithers. Baker was sitting down at the time, and Lester, according to the evidence of one of the witnesses, told him that if he moved he would kill him. Baker told Lester that he was unarmed, but that if he (Lester) would put down his gun he would whip him with his fists, which proposition not being accepted by Lester, who continued to abuse him, he then said, ‘ ‘ If you will let me get to my cash drawer, I will shoot it out with you; get sixteen steps apart and shoot it out.” Lester had not drawn his pistol at this time, but it was evident to Baker that he had one, and would use it, if necessary. Lester finally permitted Baker to get up from the chair in which he was sitting, and go towards his cash drawer. Before reaching this cash drawer, Baker drew a pistol from his bosom and turned towards Lester with it in his hand. Exactly in what position he held it does not definitely appear from the evidence. Whereupon "he was shot and killed by Lester. [387] A duel, as the term is ordinarily understood, and as used in this policy, “is the fighting together of two persons by previous concert with deadly weapons to settle some antecedent quarrel, ” and has none of the elements of sudden heat and passion. 2 Bishop’s Criminal Law (8 Ed.) 313; Black’s Law Dictionary, page 399; Century Dictionary Encyclopedia, vol. 3, page 1792; Davis v. Modern Woodmen, 98 Mo. App. 713, 73 S. W. 923; Ward v. Commonwealth, 132 Ky. 636, 116 S. W. 786, 19 Ann. Cas. 71. The fight, if such it was, in which Baker lost his life, had none of the elements of a duel as thus defined, but was brought about without premeditation on his part by the acts and words of Lester. Nothing said in Thomas v. State, 61 Miss. 60, is in conflict herewith. The court in that case was not dealing with a duel in the common acceptation of the term. But it is said, in effect, that, granting that Baker’s death was not the result of a duel, still it was caused or superinduced in the violation or attempted violation of a criminal law: First, because it would not have occurred, had he not at the time had on his person a concealed weapon; and, second, because it occurred in a fight in which he had voluntarily engaged. In order that the death of an assured may be said to have been caused or superinduced in the violation or attempted violation of a criminal law within the meaning of this clause of an insurance policy, it must appear that his act bore such relation to his death that the latter would not have occurred at the time and place, if the assured had not been engaged in violating the law. Granting, for the sake of the argument, that i.t can be said that the fact that the pistol which Baker had upon his person was concealed had such effect upon his or Lester’s conduct as without it his death would not have occurred, it does not appear that in carrying the pistol concealed he was violating the law. He had the right to carry it concealed under certain circumstances. The [388] burden of showing that he was carrying it concealed unlawfully was upon the appellant; but upon this point the record is silent, nothing appearing relative thereto, except the mere fact that he had the pistol concealed about' his person. On the evidence, whether or not Baker voluntarily engaged in a fight, if such it may be called, which resulted in his death, was a question of fact for the jury, and not of law for the court. It may be that in doing what he did he was simply trying to get upon even terms with a man who was forcing him, at the point of a pistol, to submit to a very great indignity. Reversed and remanded.