Page:The Green Bag (1889–1914), Volume 12.pdf/696

 The Law of the Land. a broad gauged road of escape to the insurer. Any accident through human agency unusual and unexpected to the person to whom it happens may have been intended by the hu man agency inflicting it, and proof of such intention is a complete defense. It would be against the public welfare and morals to permit an insured to hire some one to chop off a hand, or gouge out an eye, or saw off a limb, and then compel an insurance com pany to pay for an accidental injury. But to be murdered in cold blood with malice aforethought, being a very unusual and un expected event to the person to whom it happens, and then have the insurer defend on its policy that the murderer intentionally took your life is a reductio ad absurdum as far as protection from accident is concerned. Accident insurance containing such a clause is more or less a misnomer. As a fire is not a fire when caused by lightning, and there must be a lightning clause in your policy, so when you buy your accident insurance be sure that it contains an intentionally murder clause. An illustration of the kind of insurance noted is the following : Insured was em ployed as a coal heaver in a coal shed where he was to spend the night with a companion hoisting coal. The night was very dark, it thundered and lightened and rained. The two worked continuously until eleven o'clock with their backs toward the railway track upon which the coal shed opened. There were two lighted lamps near them. 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 crushing through the brain of insured and followed by two other shots. The shots proceeded from open side of shed next railway track. The evidence was suffi cient in the opinion of the court to show that the assassin intended to shoot the insured, and that when shooting he knew that he was shooting him and intended to kill. He did

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not direct his fire at the companion but se lected his victim, followed it with two other shots, evidently aimed with murderous in tent, and when he stood near enough to his victim to quite touch him with extended hand, the insured being burnt about the face with powder. The court asks, is it not a just and reasonable conclusion that the assassin recog nized and had no doubt of the identity of his victim? There is no evidence, fact or cir cumstance tending to show or even suggest that the death of insured was accidental within the meaning of his policy, that it was not an intentional injury inflicted by the in sured or any other person. With courts, however, there are distinctions within distinctions just as there are in this world wheels within wheels. Another court reviewing a killing where policy did not cover a death by accidental means which was the result of design either on the part of the in sured or any other person, reasons if a per son should draw a pistol in a crowded street and deliberately fire the same with the intent of killing some one, there would undoubtedly be a design to kill or wound some one but no design to kill or wound the particular person injured. Suppose for purpose of plunder a passenger train was derailed, knowing such an act is liable to kill or injure some one but having no design to kill any particular per son and the insured is killed, can it be said that his death was not accidental? Suppose one fires a pistol in the air. He fires by design but does not intend to kill any one. The shot strikes the insured and kills him. The act which causes the death — shooting of the pistol — is designed and therefore not accidental, but the killing is certainly acci dental and not designed. If the pistol is fired at one man and hits another, is it any less accidental as far as the person hit is con cerned or the mind of the person who does the shooting? And if the shot is fired at the insured in the belief that he is another man, is not the character of the act the same? The death of the person thus killed must be con