Butero v. Travelers' Accident Insurance Co.

Pinney, J. The contract upon which the action is founded is that the insurance provided by it “ does not cover accident or death resulting wholly or partly, directly or indirectly, from . . . intentional injuries, inflicted by the insured or any other person.” In view of the facts in evidence and about which there is really no dispute, the question is [540] whether the legal presumption invoked by the plaintiff, that the injuries the deceased received were accidental, or unintentional, is not wholly repelled or overborne by the evidence. The presumption in question properly applies where there is no evidence to shoAV the circumstances and manner in which the injuries were inflicted. The defendant is not liable if the injuries which caused the death of the insured were intentionally inflicted by himself or any other person. While this is a defense, and the burden of proof is ordinarily upon the defendant, yet, if it appears upon plaintiff’s evidence, or upon the entire case, that such injuries were intentionally inflicted, the legal presumption is overthrown. The defense may be established by facts and circumstances, and the inferences properly to be drawn from them, sufficient to satisfy the jury of the truth of the defense with reasonable certainty. It is beyond question or dispute that the insured came to his death by external and violent means. The legal presumption is that his death was not caused by his own suicidal act. The evidence clearly shows that the external and violent means of his death proceeded from some person unknown. The inquiry is as to the question whether the shooting that caused his death was accidental or intentional and with the design of effecting his death; and this question is to be determined from the facts proved, the manner of his death, and all the attending circumstances. If the killing was accidental as to the insured in that he anticipated or expected no injury, but was intentional ás to his assassin, then, according to the plain language of the provision of the policy, there can be no recovery. Travellers' Ins. Co. v. McConkey, 127 U. S. 661-667; Mallory v. Travelers' Ins. Co. 47 N. Y. 52. The case of Button v. Am. Mut. Acc. Asso. 92 Wis. 83, was upon a provision materially differing from the one in question, and this case is, therefore, not in point. It is necessary only that the evidence of intentional killing preponderate against the presumption of [541] accident. Cronkhite v. Travelers’ Ins. Co. 75 Wis. 119; Johns v. N. W. Mut. R. Asso. 90 Wis. 335; Bachmeyer v. Mut. R. F. L. Asso. 87 Wis. 337, 338. The plaintiff’s counsel relies upon Hutchcraft's Ex'r v. Travelers' Ins. Co. 87 Ky. 300, in which it was held that one assassinated comes to his death by accidental means; but in that case there was not, as there is in this, a provision to the effect that the policy of insurance did “ not cover accident or death resulting wholly or partly, directly or indirectly, from . . . intentional injuries inflicted by the insured or any other person,” and it is not in point. Nor is American Acc. Co. v. Carson (Ky.), 36 S. W. Rep. 169, which did not contain the same or a similar provision. The same is true of Insurance Co. v. Bennett, 90 Tenn. 256. The killing was clearly the result of intelligent human agency. Was it accidental or intentional? The assured went, at 6 o’clock in the afternoon, from his supper table, to his employment as a coal heaver in the coal shed, ivhere he was to spend the night with his companion in hoisting coal. The night was a very dark one. It thundered and lightened •and rained, particularly at the time he received the fatal shots. They worked continuously until about 11 o’clock, with their backs towards the railway track upon which the ■coal shed opened, with two lighted lamps near them, and with the upright hoist between them, operated by cranks, ■one working on either side. When they had partly raised a bucket of coal, and, so far as it appears, when .they were utterly unaware of the presence of any human being, they were startled by a pistol shot, which sent a bullet crashing through the brain of the insured, and he fell dead where he .had stood; and two other shots, either of which would have proved fatal, were fired in rapid succession into vital parts of his body. His companion, Dominique, instantly fled and ran about a block to the station. He had seen no one about ’there during the evening, and had heard no one, and there [542] is nothing to show that the assured had, or that he uttered any word or exclamation. He was presently found dead where he fell, and the evidence tends to show that one of the shots was fired with the weapon so near his body as to discolor his clothing with the burning powder. The shots could have proceeded only from the open side of the shed next to the railway track, and it was lighted with two lamps as stated. The hour and the night was one in which honest men are not likely to be abroad with firearms. The time, place, and circumstances were suited to criminal purposes. It seems impossible for persons of reasonable intelligence to be deceived, in the presence of these pregnant facts pointing unmistakably to only one conclusion. If it were possible to conclude that the first shot was fired accidentally, what are we to think in respect to that question, when it was instantly followed by two other shots, evidently aimed at vital portions of the body of the insured, and which took effect, inflicting fatal wounds ? How many shots are we to believe were accidentally thus fired in rapid succession upon and into vital parts of the body of the insured, and under circumstances so favorable for assassination, at a time when firearms would be mainly in requisition or use for criminal purposes? It is contended, however, that there is no evidence that the assassin, at the time he inflicted the wounds, intended to inflict them on the body of the insured,— that is to say, that there is no evidence to show that he Imew, at the time he inflicted them, that he was inflicting them upon the body of Butero, the insured; and that, in the absence of such proof, the killing must be regarded as accidental, and covered by the provisions of the policy. The case of Utter v. Travelers’ Ins. Co. 65 Mich. 545, is confidently relied on. In that case the provision of the policy was that the insurance “should not be held to extend ... to any case of death or personal injury, unless the claimant under this pol [543] icy shall establish, by direct and positive proof, that said death or personal injury was caused by external violence and accidental means, and was not the result of design, either on the part of the insured or of any other person.” In that case the testimony was conflicting as to the circumstances of the killing; that of the plaintiff tending to show that the officer knew the insured, and demanded his surrender as a deserter, and shot him in self-defense, while that of the defendant tended to show that the shooting was reckless, and that the officer did not know the deceased, nor that he had shot him, until after the killing. It was held that the case should have been submitted to the jury, and that the design mentioned in the policy must be considered as a design to kill the insured, and, if such design did not exist when he fired the shot, or if he did not know that the man he was shooting at was the insured, then the plaintiff might recover on the policy. The present case is clearly distinguishable. Here there is evidence sufficient to show that the assassin intended to shoot Butero, the insured, and that when shooting he knew that he was shooting him, and intended to kill him. It is true that no witness has testified to this effect in so many words, but this is the just and proper result of the facts and circumstances given in evidence and in respect to which there is no conflict or dispute. It cannot be expected that the assassin would expressly declare his recognition of his victim, either immediately before or at the time of firing repeated fatal shots in and upon his body. All this is ordinarily to be left to inference, from a variety of facts and circumstances proved before the jury. Here the assassin went to the place, at the late hour of 11 o’clock at night, when a violent storm was prevailing, where Butero worked with his companion, approaching him from behind, when there were two lights burning near him. He did not direct his fire against Dominique, but at once selected his vie544 tim, and sent a bullet through his head from which he fell dead, and he followed it by two other shots, evidently aimed with murderous intent, inflicting wounds either of which would have been fatal, and at a time when the evidence tends to show that he stood near enough to his victim to quite touch him with his extended hand. Had the first shot been fired through accident, and not intentionally, it is not reasonable to suppose it would have been followed at once by others. Is it not a just and reasonable conclusion that the assassin recognized, and had no doubt of the identity of, his victim, and followed the first shot by two others to certainly execute his deadly purpose? There is no evidence, fact, or circumstance tending to show, or even suggest, that the death of Rutero, the insured, was accidental, within the meaning of the policy. The facts admit, we think, of but one conclusion. lies ijpsa loquitur. We think that the evidence was sufficient to show with reasonable certainty that Butero was murdered, and that his murderer knew his victim when he fired the fatal shot, and that he fired it with intent to kill him. The court erred, in our judgment, in refusing to set aside the verdict and grant a new trial. By the Court.— The judgment of the circuit court is reversed, and the cause remanded for a new trial.