Riley, John M

English

UND Scholarly Commons (University of North Dakota)

North Dakota Law Review Volume 33 Number 2 Article 10 1957 Insurance - Accident Insurance - Benefits for Death While Comitting Felony John M. Riley Follow this and additional works at: https://commons.und.edu/ndlr  Part of the Law Commons Recommended Citation Riley, John M. (1957) "Insurance - Accident Insurance - Benefits for Death While Comitting Felony," North Dakota Law Review: Vol. 33 : No. 2 , Article 10. Available at: https://commons.und.edu/ndlr/vol33/iss2/10 This Case Comment is brought to you for free and open access by the School of Law at UND Scholarly Commons. It has been accepted for inclusion in North Dakota Law Review by an authorized editor of UND Scholarly Commons. For more information, please contact und.commons@library.und.edu. 1957] RECENT CASES 243INSURANCE - ACCIDENT INSURANCE - BENEFITS FOR DEATH WHILE COmIT-"IING FELONY.- Plaintiff, beneficiary under an accident policy insuring againstinjuries sustained solely through external, violent and accidental means,brought suit to recover inder the policy for the death of the assured who washurned to death while intentionally burning a building to collect the insuranceon it. After preparations for ignition had been made, the insured had re-entered the building with the consent of the owner, a fellow arsonist. Whilein the building, the fire ignited prematurely, and he was burned to death. TheAppellate Court for the Third District of Illinois, in reversing the lower court,held that the fire was the proximate cause of death, and since it occurred pre-iniaturely to the time which was intended, it was an accident entitling thebeneficiary to recovery under the accident policy. Taylor v. John HancockAlut. Life Ins. Co., 132 N.E.2d 579 (Ill. 1956).The general rule is that the insurer must make an exception in the policy ifit is not to cover death due to, or connected with, violation of law.' NewYork has a; statute expressly requiring this exception to be included,2 whileNorth Dakota permits such an exception under certain conditions. 3 It hasbeen held that recovery must be denied because the exception clause is arnere statement of public policy which would control regardless of the pro-visions of the contract.4 Recovery has also been denied where it was shownthat the violation of law was the proximate cause of the death 5 or injury,"and the insured could reasonably expect to be injured or killed as the resultof his acts.7It has been held by courts allowing recovery that it is not sufficient that.in unlawful act was committed by the insured, and death occurred during thetime he was engaged in its commission, but it must be shown that the act hada direct connection with the death.8 Courts have defined an accident as thatwhich happens by chance, or which is unexpected, unusual and unforseen. 9"i hese courts reason that the injury or death has resulted through accidentalmeans where, in the act which precedes the injury, something unforseen andunexpected occurs and produces the injury or deathie Under this theory, theinsurance company is liable unless it can be shown that the insured purchasedthe policy in contemplation of the commission of the felony, and the conse-1. Domico v. Metropolitan Life Ins. Co., 191 Minn. 215, 253 N.W. 538 (1934);Van Riper v. Constitutional Government League, 1 Wash. 2d 635, 96 P.2d 588 (1940).2. N. Y. Insurance Law, § 164-4-(f)-21.3. N. D. Rev. Code § 26-03A03 (Supp. 1953) (Provides that the exception may beincluded at the option of the insurance company, provided that the exact words of thissection are used; or, if not used, the consent of the Commissioner is obtained. Eitherthe caption of this subsection, or a similar caption approved by the Commissioner, mustprecede the statement of exception in the policy).4. Wells v. New England Mut. Life Ins. Co., 191 Pa. 207, 43 Atil. 126 (1899);DeMello v. John Hancock Mut. Life Ins. Co., 281 Mass. 190, 183 N.E. 255, 257 (1932)(dictum); Berne v. Prudential Ins. Co., 235 Mo. 178, 129 S.W.2d 92, 98 (1939)(dictum).5. Winter v. Metropolitan Life Ins. Co.. 235 Mo. 184, 129 S.W.2d 99 (1939).6. Hutton v. State Accident Ins. Co., 267 Ill. 267, 108 N.E. 296 (1915).7. Udisky v. Metropolitan Life Ins. Co., 264 App. Div. 890, 35 N.Y.S.2d 1021 (2dDep't. 1942).8. Accident Ins. Co., v. Bennett, 90 Tenn. 256, 16 S.W. 723 (1891).9. United States Mut. Ace. Ass'n v. Barry, 131 U. S. 100 (1889); Olinsky v. RailwayMail Ass'n., 182 Cal. 669, 189 Pac. 835 (1920).10. See e.g., Koester v. Mutual Life Ins. Co., 6 W. W. Harr. 537, 179 Atl. 327(Del. 1934).244 NORTH DAKOTA LAW REVIEW [VOL. 33quent danger." The reasoning seems to be based on tMe fear of establishingan unjustified means for evasion of liability.12Several courts have allowed recovery on the theory that the beneficiaryderives his rights through contract father than from the estate of the insured.13Courts also say that when the insured purchases his policy, the beneficiary ob-tains a vested interest which should not later be divested or jeopardized by anywrongful act of the insured, not excluded from the policy, for which the bene-ficiary was not responsible, 14 unless it is positively shown that the policy wasobtained in contemplation of the crime. 15It seems that the contractual right of the beneficiary presents the best argu-ment in favor of recovery. The insured usually does not purchase the policyior his own benefit, but rather for that of a third party; and since ample con-sideration is paid for the indemnity, the third party should not be deprived ofhis rights under the contract merely because one of the original parties hasdied or been injured as the result of an unlawful act. The court in the instantcase apparently avoided the necessity of adopting one of the theories set outabove by reasoning that the accident occured before the actual commission ofthe felony.JOHN M. RILEY.NUISANCE - INJUNCTION - ENJOINING OPERATION OF USED CAR LOT.-Plain-tiffs, home owners in a zoned residential district were granted a perpetual in-junction prohibiting the defendants operation of a "used car lot" which waslocated on an adjacent unincorporated area and separated from the zoned dis-trict by a federal highway. The plaintiffs alleged that the defendant's businessdiminished the value of their property, created excessive noise and illumination,and was unsightly. In affirming the decree of the lower court the SupremeCourt of Appeals held that the evidence was sufficient to justify a finding thatthe used car lot constituted a nuisance in fact. Martin v. Williams, 93 S.E.2d835 (W. Va. 1956).A person may use his property as he sees fit so long as he does not -invadethe rights of others, based upon the ordinary standards of life and the concep-tions of reasonable men.' When the use of property is unreasonable, unlawful,or when it unwarrantably impairs the rights of another it becomes a nuisance,2depending upon the particular facts of each case. A common conception of anuisance is that it is anything which results in the disturbance or annoyanceof one in lawful use, possession, or enjoyment of his property or which rendersits ordinary use or occupation physically uncomfortable. 3 Nuisances have been11. Domieo v. Metropolitan Life Ins. Co., 191 Minn. 215, 253 N.W. 538 (1934);Hcme State Life Ins. Co. v. Russell, 175 Okla. 492, 53 P.2d 562 (1936).12. Zurich Gen. Ace. & Liab. Ins. Co. v. Flukinger, 33 F.2d 853 (4th Cir. 1929);Sanders v. Metropolitan Life Ins. Co., 104 Utah 75, 138 P.2d 239, 243 (1943) (dictum).13. Home State Life Ins. Co. v. Russell, 175 Okla. 492 53 P.2d 562 (1936); Collinsv. Metropolitan Life Ins. Co., 232 111. 37, 83 N.E. 542, 544 (1907) (dictum).14. Mutual Life Ins. Co. v. Guller, 68 Ind. App. 544, 119 N.E. 173 (1918); Paynev. Louisiana Industrial -Life Ins. Co., 33 So.2d 444 (La. 1948).15. Home State Life Ins. Co. v. Russell, 175 Okla. 492, 53 P.2d 562 (1936).1. Wilson v. Evans Hotel Co., 188 Ga. 498, 4 S.E.2d 155 (1939).2. Kramer v. Pittsburgh Coal Co., 341 Pa. 379, 19 A.2d 362 (1941); accord, Citycf Temple v. Mitchell, 180 S.W.2d 959, 962 (Tex. Civ. App. 1944) (the invasion must besubstantial).3. Jones v. Trawick, 75 So.2d 785 (Fla. 1954).

Insurance - Accident Insurance - Benefits for Death While Comitting Felony

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Insurance - Accident Insurance - Benefits for Death While Comitting Felony

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