{ "id": 1697064, "name": "Lincoln Income Life Insurance Company v. Alexander", "name_abbreviation": "Lincoln Income Life Insurance v. Alexander", "decision_date": "1959-10-26", "docket_number": "5-1911", "first_page": "63", "last_page": "69", "citations": [ { "type": "official", "cite": "231 Ark. 63" }, { "type": "parallel", "cite": "328 S.W.2d 266" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "12 S. W. 2d 402", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "178 Ark. 839", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1396906 ], "opinion_index": 0, "case_paths": [ "/ark/178/0839-01" ] }, { "cite": "113 S. W. 2d 489", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "195 Ark. 414", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8721330 ], "opinion_index": 0, "case_paths": [ "/ark/195/0414-01" ] }, { "cite": "79 S. W. 2d 78", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "190 Ark. 379", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1421840 ], "opinion_index": 0, "case_paths": [ "/ark/190/0379-01" ] } ], "analysis": { "cardinality": 548, "char_count": 10495, "ocr_confidence": 0.504, "pagerank": { "raw": 1.58387959498732e-07, "percentile": 0.6808537872285219 }, "sha256": "efbcf53600b3eb57962a4617bff14b9338348fdcdf08e5da2ff316f2f801988c", "simhash": "1:ea066214565c891a", "word_count": 1784 }, "last_updated": "2023-07-14T20:12:37.296536+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Lincoln Income Life Insurance Company v. Alexander." ], "opinions": [ { "text": "Jim Johnson, Associate Justice.\nThis appeal involves a suit to recover under a double indemnity clause in a life insurance policy.\nAppellees, Elzo Alexander and Eosie Alexander, are the named beneficiaries in a life insurance policy issued by appellant, Lincoln Income Life Insurance Company, upon the life of Evard O\u2019Leary Alexander, brother of Elzo Alexander. The policy provides for the payment of $1,000 in the event of death of Evard O\u2019Leary Alexander and further provides for the payment of an additional $1,000 should the death of Evard O\u2019Leary Alexander result from violent, external and accidental means.\nThe insured, Evard O\u2019Leary Alexander, died on September 12, 1957. The cause of death was a penetrating stab wound in the abdomen inflicted upon him by one Lovely Lee during an encounter in front of the Nightingale Tavern in Kansas City, Missouri, on September 5, 1957.\nProof of loss was filed and appellant paid the appellees $1,000, the face amount of the policy, but declined to pay the double indemnity amount. Appellees filed this action to recover the sum of $1,000 under the double indemnity provision of the policy, plus the statutory twelve per cent penalty and attorneys\u2019 fee.\nAnswering, appellant denied that the death of the insured resulted from accidental cause, and alleged that the insured died as a result of his participation in an assault and as a result of a stab wound intentionally inflicted by another, claiming that either would exempt the appellant from liability for double indemnity under the terms of the policy.\nAppellant admitted that the death of Alexander was from violent and external means. It undertook to establish that the death was not accidental, or that if accidental, the death came within one of the exclusions contained in the policy. To sustain this burden appellant offered the testimony of four persons. The testimony of these witnesses is summarized as follows:\nRosa Lea Harding, a 29-year-old unmarried colored female, was evidently a woman of the night. Her testimony established solely that she was in the Nightingale Tavern on the evening of the fatal occurrence, that Lee and Alexander were present, that both were ejected for loud talk, and that she saw Alexander immediately after the stabbing and that he had no weapon.\nCarl Di G-erlamo testified only that he was an insurance . agent and that he was in the Nightingale Tavern on business. Beyond this he professed no knowledge of the facts, except that he did not see a weapon on either man at any time.\nGfurinder Abner, the bouncer in the Nightingale Tavern, testified that he escorted both men from the Tavern because they were talking loud, but that both men were agreeable to leaving the establishment. That he walked between them to the door and that Lee preceded Alexander out the door because he, Abner, was between them until they reached the door. That he did not see any fight, but that he saw Alexander within one minute after Alexander left the Tavern and that at that time he had been stabbed and he did not have a weapon on him.\nLovely Lee, the admitted killer of the insured, admitted that he struck the fatal blow. Beyond that point his testimony is in conflict, not only with that of the other witnesses, but with his own testimony given at the time of his trial for the murder of Alexander. In fact, Lee was so evasive in giving answers that he refused even to concede that he was a colored man. Lee denied that either he or Alexander were ejected from the Nightingale Tavern. The testimony of Gurinder Abner and Rosa Lea Harding (witnesses for the defendant) squarely contradicts this. Lee claimed that he had left the Tavern and was sitting outside with his hand in his pocket when Alexander came out. The testimony of Gurinder Abner again squarely contradicts him for Abner testified that the two men left at the same time and that Alexander was outside the door less than a minute before returning stabbed. Lee here claimed that Alexander was coming at him with a knife. Yet he admitted that at his own trial for murder, where his life was at stake, his then story was that Alexander had his hand in his pocket. Portions of Lee\u2019s testimony are undisputed. It is undisputed that Alexander did not strike Lee; it is undisputed that Alexander did not say a word to Lee after leaving the Tavern and it is undisputed that Lee and Alexander did not agree to fight. Lee also testified that someone outside had yelled \u201cLook out\u201d and that there were 25 or 30 persons inside the Tavern.\nThe case was tried before a jury. A verdict was returned for the appellees. Judgment was entered for appellees against appellant for the snm of $1,000, plus statutory damages of $120, attorney\u2019s fee of $500, and court costs, from which comes this appeal.\nFor reversal, appellant relies on four points. Point 4, relied on by appellant for reversal, will be discussed first. Appellant contends that: \u201cThe Court erred in giving to the jury Instruction No. 11 at the request of plaintiffs and over the objections of defendant.\u201d Instruction No. 11 is as follows:\n\u201cThe killing of an unarmed person by one upon whom he is moving aggressively is by accident or accidental means if the unarmed person did not know and had no reason to believe that his adversary was armed and intended to kill him upon such advance. Thus, should you find that Alexander was moving aggressively upon Lee, but was unarmed, you are instructed that the death of Alexander was by accident or accidental means unless Alexander knew or had reason to believe that Lee was armed and intended to kill him.\u201d\nThe language in this instruction is taken from Gilman v. New York Life Insurance Company, 190 Ark. 379, 79 S. W. 2d 78. . This rule has been the law in Arkansas for more than 20 years. It has been cited with approval by other courts and treatise writers and is in accordance with the prevailing general rule. We find no error in the trial court\u2019s giving Instruction No. 11.\nAppellant\u2019s point 1, relied on for reversal, contends that \u201cThe evidence is insufficient to support a finding that the insured died as a result of accidental injury. \u2019 \u2019\nIt is undisputed that the death of Evard O\u2019Leary Alexander was caused by a penetrating stab wound of the abdomen, and that the stab wound was caused from \u201cviolent and external means.\u201d This being so, a presumption of law arises that the death was accidental. Gilman v. New York Life Insurance Company, supra. The jury was so instructed, without objection from appellant, and in fact appellant recognized this presumption and accepted the burden of proving that death was not caused by accidental means and claimed the privilege of opening and closing because of its assumption of the burden of proof.\nAppellant introduced all of the evidence but the essential facts were in dispute. It was for the jury to decide which testimony it would accept and which it would reject and the weight to be assigned to each item of evidence and the credibility of the witnesses. Missouri Pacific R.R. Co. v. Hancock, 195 Ark. 414, 113 S. W. 2d 489.\nAppellant\u2019s point 2 relied on for reversal contends that \u201cThe evidence is insufficient to support a finding that death of the insured did not result from his participation in an assault.\u201d\nThe policy of insurance sued upon contains an exclusion for \u201cdeath resulting from . . . participation in a riot, assault, or felony.\u201d It is settled law in this jurisdiction that the character of assault contemplated by such words of exclusion is not a simple assault but it must have been of such severity as would have justified the assaultee in inflicting death or serious injury by way of self-defense. Gilman v. New York Life Ins. Co., supra. Also see: 26 A. L. R. 2d, beginning on page 406 where it is said:\n\u201cBut most of the courts, in stating the conditions of the accident insurer\u2019s non-liability for injury or death to an insured in the course of an assault wrongfully committed upon another have indicated that in order to excuse the insurer, the insured\u2019s injury or death must have been a reasonably foreseeable, as well as a natural consequence of his wrongful acts.\u201d\nGreat weight is attached to the insured\u2019s ability to foresee the natural and probable consequences of his action. If the action of the insured is such that a reasonable person would conclude that danger of serious injury might result, recovery would be denied. If the action is such that the insured could not reasonably foresee the fatal consequences, recovery will be permitted. The testimony on this point in the case at bar was in irreconcilable conflict, hence a question for the jury.\nAppellant\u2019s point 3 relied on for reversal contends that \u201cThe evidence is insufficient to support a finding that the death of the insured did not result from an injury intentionally inflicted by another. The general rule is that an exclusion for death resulting from injuries intentionally inflicted by another means that there must be an intention not only to commit the injury but that the fatal consequences will result therefrom. Southern National Insurance Company v. Lofton, 178 Ark. 839, 12 S. W. 2d 402.\nAppleman, Insurance Law and Practice, Vol. 1, Sec. 483, states the rule:\n\u201cUnder the principles of liberal construction, the courts have in many instances held that if the assailant did not intend to cause death . . . even though the assailant intentionally caused injury, recovery would not be denied.\u201d\nThis author cites cases from Florida, Kentucky, Louisiana, Oklahoma, West Virginia, and California, as well as the Arkansas rule to support this proposition. In the instant case, Lee, the appellant\u2019s star witness, told the jury that he did not intend to injure or kill'' the decedent at the moment of striking. The jury was justified in so believing and finding, since it was indicated that Lee was acquitted of the killing.\nAfter a careful review of the record, we are convinced that there is substantial evidence to support the verdict of the jury. Finding no error, the judgment is affirmed.\nWe have decided that appellees\u2019 attorneys are entitled to a combined additional fee of $100. This is because the trial court, in allowing the attorneys\u2019 fees, made it plain that said amount did not include any attorneys\u2019 fees for an appeal to this Court.", "type": "majority", "author": "Jim Johnson, Associate Justice." } ], "attorneys": [ "Bethell & Pearce and Lawson Cloninger, for appellant.", "Sexton, Holland $ Morgan, for appellee." ], "corrections": "", "head_matter": "Lincoln Income Life Insurance Company v. Alexander.\n5-1911\n328 S. W. 2d 266\nOpinion delivered October 26, 1959.\nBethell & Pearce and Lawson Cloninger, for appellant.\nSexton, Holland $ Morgan, for appellee." }, "file_name": "0063-01", "first_page_order": 87, "last_page_order": 93 }