Opinion
Opinion delivered December 8, 1930.
1. INSURANCE — ACCIDENTAL KILLING. — In an action on an accident policy, an instruction that the term "accidental" is used in the policy "in its ordinary popular sense as meaning happening by chance, unexpectedly taking place, not according to the usual course of things or not as expected," held correct. 2. APPEAL AND PRIOR — EVIDENCE HARMLESS WHEN. — In an action on an accident policy by insured's widow, testimony that she had two children and was employed by the State Educational Department, if erroneous, was not prejudicial. 3. TRIAL — ARGUMENT OF COUNSEL. — The expression by defendant's counsel of surprise at the manner of defendant's conduct of the. trial, without stating any facts or incidents of the trial that caused surprise, held harmless.
Appeal from Monroe Circuit Court; W. J. Waggoner, Judge; affirmed.
Bogle Sharp and Rose, Hemingway, Cantrell Loughborough, for appellant.
Lee Moore, Guy E. Williams and O. E. Williams, for appellee.
STATEMENT OF FACTS.
This appeal is prosecuted to reverse a judgment on an accident policy against appellant company recovered by the appellee. The policy was issued for $2,000 on the life of Ony Ware, with Hazel Ware, appellee, the wife of the insured beneficiary therein, insuring him from loss of life through external, violent and accidental means.
The insured, Ony Ware, was shot and killed by B. T. Newman, his business partner, at Brinkley, Arkansas, on December 22, 1928. At the beginning of the trial Mr. Archie House, one of the attorneys for the appellant insurance company, stated:
"Before Mr. Newman takes the stand, we admit that policy No. 440,904, issued to Ony Ware on the 21st day of October, 1923, his wife named as beneficiary, was in force at the time Ony Ware was killed by a pistol shot fired by one B. T. Newman, and that the deceased met his death as the result of violent and external means, and the presumption is that it was accidental."
The defendant appellant thereupon assumed the burden of proof and asked for and was granted the right to open and close the case.
It appears from the record that Newman and the deceased were partners in business as contractors and builders, Ware, the deceased, procuring the contracts for the firm, arranging to buy the supplies and collecting the moneys for the construction work, which was done under the supervision of Newman, and Mrs. Hazel Ware kept the accounts for the firm. Newman had become incensed at the conduct of Ware in making collections and expending the money for some of his own insurance and neglecting to provide money for the payroll coming due. The parties had been very friendly and had been rooming together at Mrs. Smith's boarding house in Brinkley, where some work was under construction. Shortly before the killing, Newman had requested Mrs. Smith to provide him with a separate room, which was done. On the day of the killing, Newman made other threats about he would get Ware and armed himself with a pistol, had one of his oldest employees in point of service 'phone to ascertain whether Ware was remaining in Little Rock or would return to Brinkley, and, finding that he was on his way back, did not go to Little Rock in accordance with his expressed intention at the time of making the threats. Upon Ware's return he went down to the office of the lumber company, the firm with whom they dealt, and Newman shortly appeared, still armed, and invited Ware into the little private office of the general office, saying he wanted to discuss some matters with him. Shortly thereafter they became engaged in a fight and Newman shot Ware three times, killing him. No one was in the room except the participants in the difficulty.
Newman stated that Ware had attacked him upon being charged with his conduct about the wrongful expenditure of the money collected; that they had a fist fight, and then Ware "grabbed" a scale weight from the desk and struck him, knocking him almost down, whereupon he shot him with a pistol in his necessary self-defense.
Some witnesses testified that there was no scale weight in evidence and none about the body of Ware when they went into the room where Ware's body was found upon the floor immediately after the shooting. Ware was unarmed, although he had a sawed off shotgun in his car, where it was usually carried, and known by Newman to be carried, and a few shotgun shells in the pocket of his hunting coat, which he was wearing when shot.
Newman denied that he had been drinking for a week before the difficulty or on the morning of it, although several witnesses testified that such was the case, and expressly denied that he armed himself before going to meet Ware anticipating any difficulty, admitted that he buckled the pistol belt or strapped the pistol around him, but said he only carried the pistol because he could not get it in his grip when he contemplated going to Little Rock that morning.
Appellant objected to the introduction of the testimony of Mrs. Hazel Ware that she had two children and was at the time of the trial employed in the State Educational Department at Little Rock.
Newman, in making his statement to the jury, testified that he had nine people dependent upon him.
The court instructed the jury giving, among others, instruction No. 3 over appellant's objection as follows:
"You are instructed that the term `accidental' is used in this policy in its ordinary popular sense as meaning happening by chance, unexpectingly taking place, `not according to the usual course of things or not as expected'; and if you find in this case that the deceased, Ony Ware, came to his death as a result of accidental means as defined to you, your verdict should be for the plaintiff."
The court also gave instructions Nos. 1 and 2 defining the conditions under which the killing would be accidental according to whether the jury found the killing was intentional but not justified, and an instruction on its own motion to like effect. These instructions, while objected to, are now conceded to be correct. Objection was also made to the argument of one of appellee's attorneys as improper. The jury returned a verdict for appellee for the amount of the policy, and from the judgment the appeal is prosecuted.
(after stating the facts). Appellant insists that the court erred in giving said instruction No. 3, but concedes that the law was properly declared in requested instructions Nos. 1 and 2 given by the court applying the principles of law to the case made.
In Mutual Benefit Health Assn. v. Tilley, 176 Ark. 528, 3 S.W.2d 320, the court, in an action by the administrator of the insured to recover on an accident policy for the death of the insured, who was shot by his wife, the beneficiary under the policy, where the jury found the killing was intentional but not justified, held that the killing was "accidental" within the meaning of the policy, saying: "Appellant insists that the killing, while intentional, was justified, and insists that there can be no recovery, and the following cases are cited in support of that contention (citing cases).
"In reply to this contention, it may be said that the jury has found, under the instructions referred to above, that the killing was intentional, but not justified. This being true, the killing was `accidental' within the meaning of the language employed in the policy sued on."
The instruction No. 3 complained of is in no wise contradictory of the instructions that correctly declared the law as applicable to the proved facts, and is not, therefore, erroneous, and could not have been prejudicial, since it was not an incorrect definition of the term "accidental," and in any event the jury was not limited to the term as defined therein, the court saying: "If you find that the deceased, Ony Ware, came to his death as a result of accidental means as defined to you," did not limit the definition to the particular instruction, having defined "accidental" also in the other correct instructions. It did, not leave out any element necessary to be shown before a judgment could be rendered against the appellant not, as already said, limiting the definition to the particular instruction. The jury could well have found from the testimony that Newman, having become angered at the conduct of the insured, armed himself, continuing to make threats of getting even or of destroying him, sought the deceased, invited him into a small room away from the presence of others, assaulted and finally killed him without any justification; or that Newman provoked deceased into assaulting him, voluntarily engaged in the fight and without any effort to retire or withdraw therefrom shot and killed the deceased without the right to do so in self-defense.
Appellant's contention that the court erred in the admission of the testimony, the answer of appellee, stating she had two children and was employed in the State Educational Department, could not have been prejudicial, even if erroneous. There was no question in the case about what amount the recovery should be, if a recovery was had. It could not have resulted in any event in increasing the amount of the recovery, which was limited by the amount of the policy. The chief witness for appellant had stated in his testimony that he had a family of nine people dependent upon him, and apparently as some mitigation for his becoming enraged at the conduct of his partner and accentuated evidently the feeling aroused against him because of his conduct complained of, and the statement could be regarded as invited error, even if it were held to be error.
The alleged improper argument of counsel for appellee complained of is without merit. It was an expression only of surprise at the manner of appellant's conduct of the trial of the case, but his opinion thereof, without reciting any facts or incidents of the trial that caused such opinion to be held and expressed, could not have been erroneous. Counsel made no statement of any facts outside the record, nor of any particular facts as shown by the record upon which his expression of surprise was based or founded, and the jury could not have been impressed with any other view than that it was but an expression of his opinion on the case and the manner of developing it and was entitled to weight only as it was warranted by the facts in the trial. It was but an argument and not outside the right of counsel in making an argument of the case to the jury, and no error was committed in the making of such statement.
Upon a careful consideration of the whole case, we do not find any prejudicial error in the record, and the judgment is accordingly affirmed.