Opinion
Appeal from a judgment of the Superior Court of Santa Clara County.
COUNSEL:
J. S. Wallis, and Laine & Johnston, for Appellant.
J. H. Campbell, and F. H. Howard, for Respondent.
JUDGES: In Bank. Foote, C. Belcher, C. C., and Hayne, C., concurred.
OPINION
FOOTE, Judge
This action was brought by the plaintiff to recover on what is ordinarily denominated an "accident insurance policy."
According to the facts as set out in the complaint, the insured, who was the husband of the plaintiff, "while peaceably, lawfully, and quietly engaged in his ordinary business as butcher, in his office at Mountain View, in said county of Santa Clara," was shot through the body with a pistol, without provocation, by one George Langley, from which shot and wound thereby inflicted alone, Fischer, the insured, died in a few hours.
The complaint was demurred to as not stating a cause of action, the demurrer was sustained, and the plaintiff declining to amend, a final judgment was given for the defendant, from which this appeal is taken.
It is provided in the policy involved in this controversy, among other things, that the company issuing the policy shall not be responsible thereon, if the death or injury for which indemnity is sought, "may have been caused by. .. . intentional injuries inflicted by the insured or any other person."
It is evident that the injuries inflicted in this instance, causing the death of the insured, were not inflicted by himself, but, according to the facts set out in the complaint, were caused by the act of one George Langley, without provocation.
We do not agree with counsel that the proviso refers to killing in some brawl which the insured draws upon himself, or intentionally engages in. We think it clear that the word "intentional" refers to intention on the part of the person inflicting the injury, and on his part only. It is not distinctly alleged that there was such intention here, and it might be a question whether or not the rule as to construing pleadings against the pleader would cover the defect. But the counsel for the appellant does not press this point, but has argued the case upon the assumption that the complaint charges an intentional killing. If it does, the demurrer was properly sustained.
We therefore advise that the judgment be affirmed.
The Court. -- For the reasons given in the foregoing opinion, the judgment is affirmed.