Appeal from the Circuit Court of Cook County, First Municipal
District; the Hon. JOHN A. OUSKA, Judge, presiding. Reversed and
judgment entered here.
MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT.
Defendant insurance company appeals from a $5,000 non-jury judgment against it, under a "death through accidental means" provision of a group policy. Defendant contends that the insured's death resulted from his own aggression and was not accidental within the meaning of the policy.
The decedent, Donald A. Henry, as a United States Post Office employee, was covered under a group life insurance policy issued by defendant, which provided in part:
"(B) Insurance for Death or Dismemberment by Accidental Means: Upon receipt by the office of notice and satisfactory proof, as required herein, that any Employee, while insured hereunder for Insurance for Death or Dismemberment by Accidental Means, shall have sustained bodily injuries solely through violent, external and accidental means and within ninety days thereafter shall have suffered any of the losses specified in the Schedule of Losses of this subsection (B) as a direct result of such bodily injuries independently of all other causes, the Office shall pay, subject to the terms and limitations hereof, the amount of insurance specified for such loss in said Schedule, . . . ."
The insured died of a gunshot wound on April 12, 1959. He was 24 years of age and unmarried. Immediately prior to his death, he had been living in a common-law relationship with Hattie Moffitt. He had been a paratrooper in the United States Army, and he was "pretty close" to six feet tall and weighed 175 to 180 pounds. On the day of his death, Donald Henry and Hattie Moffitt went to the apartment of Mr. and Mrs. Horace Young, the parents of Hattie Moffitt. Young was about 60 years old, 5 feet, 8 1/2 inches tall and weighed about 168 pounds. An argument took place between Donald Henry and Hattie Moffitt in the bathroom, and during the course of the argument "he had a knife drawed on her, he was going to cut her throat. . . . He had his hands around her body and a knife in his hand."
From the other room, Horace Young shouted, "No, this don't go in here, this is my apartment, this is my place, I don't want this kind of stuff going on, you have to get out of here. Why don't you go out and cool yourself and come back after you cool yourself off." Donald Henry then said, "No, I am not going until she goes." Young opened the door, and Henry walked out and said, "Listen, I'm going down stairs and open my car and get my gun and I'm going to come up here and kill everybody in here and you'll be jumping out these windows."
Young testified, "When he [Henry] came back with the sawed off shotgun he said, `I am killing everybody here.' My wife grabbed him at the door and there was scuffling at the door, you know, she was trying to hold him and he was trying to get back through the door, and my room was kind of off and I had a revolver in my drawer, and I seen them scuffling and she hollered. I got my gun out of the drawer and when I looked around like that, when he throwed her, by being an awkward woman she fell against the window and cut her arm. When she fell he was an open target, I just shot him. . . . He had the gun, just I shot before he could get himself set to shoot me. . . . Well, when he throwed my wife, that throwed the gun towards that direction, that's toward me. [The gun was] pointed right toward me, . . . and he said `Papa Young, I'm going to kill you.' . . . I shot in a hurry and tried to hit him first."
The court sustained objections to plaintiff's attempts to show that at the coroner's inquest, Horace Young testified that he tried to shoot the gun out of the hand of Donald Henry, and that the death of the insured was accidental.
Corinne Young testified that "when he [Henry] came back . . . the first thing I saw was a shotgun and I just grabbed him and I held onto him. He said, `Turn me loose, turn me loose.' Then I hollered for my husband. . . . He throwed me over to the side. . . . He throwed [pointed] that shotgun right in his face and said, `Look out, Pop Young, I will kill you.' . . . Then my husband grabbed . . . his pistol and shot him, that's all I seed, and I ran out in the other bedroom and that was all I had seen then." On cross-examination, she testified, "When he was shot the gun was in his hand."
Henry died immediately. On examination, it was found that the shotgun was not loaded and had not been recently fired. The trial court, in entering judgment, remarked, "I don't think Donald Henry realized that there would be someone who could in fact repel his any threat of shooting, whether Donald Henry knew that this gun was loaded or not is purely conjectural, no one knows that, he is dead now, he cannot testify, he cannot tell us whether he knew the gun wasn't loaded. . . . I don't think he anticipated that someone would upon his being twisted around shoot him in a very brief moment as he was being twisted from a bedroom. . . . It's because of that that I differentiate between the many cases that I have read on this matter and the particular one before us today."
Defendant's theory is that "since the insured's death resulted from his own criminal assaults, immediately preceding his death, the insured's death resulted from his own aggression and was not accidental within the meaning of the insurance policy."
At the outset, we agree with plaintiff that "it is the province of the trial judge, hearing the case without a jury, to determine the credibility of the witnesses and the weight to be given their testimony, and his judgment will not be disturbed unless manifestly contrary to the weight of the evidence," (Hall v. Illinois Nat. Ins. Co., 34 Ill. App.2d 167, 173, 180 N.E.2d 695 (1962)), and we have examined this record in the light of this rule.
We also agree that "in Illinois, the courts have adopted a liberal attitude in their interpretation of this common insurance provision. In effect, `accidental means' has been held to be synonymous with `accidental result,' and defined as something which happens by chance or fortuitously, without intention or design, and which is unexpected, unusual and unforeseen." Taylor v. John Hancock Ins. Co., 11 Ill.2d 227, 230, 142 N.E.2d 5 (1957).
Plaintiff contends that the group policy "contained no exclusions denying recovery for an assault or for self-exposure to danger, and should be construed strictly against the defendant." Cited in support is Ziolkowski v. Continental Cas. Co., ...