Metropolitan Life Insurance v. Roma

Mr. Chief Justice Butler,

dissenting.

I regret my inability to agree with the majority of my brethren concerning the disposition to be made of this case.

The complaint alleges, among other things, that Roma, the insured, “came to his death as a result of bodily injury sustained through external, violent and accidental means in this, to-wit: that as plaintiff is informed and believes and so alleges the fact to be, while the said * * * Roma was in his home in * * * Denver, * * * some person or persons unknown to this plaintiff entered said home and then and there by the use of firearms, did murder the said * * * Roma.”

As an affirmative defense to the cause of action stated in the complaint, the company pleaded substantially as stated in the majority opinion.

1. Violation of law.

Counsel for the company say: “We lay less stress upon this point than we do upon the 'accidental death’ feature.” Naturally. To exempt the insurer from liability on this ground, “Not only must there be a causative connection between the violation of the law and the death, but such connection must be direct, and not indirect; proximate or immediate, and not remote.” 6 Cooley’s Briefs on Insurance (2d Ed.), p. 5217. The facts pleaded fail to meet the requirements. It would seem that at one time the company was of that opinion; for if the death of Roma was the result of his violation of law, the company, according to the terms of the policy, was not liable in any amount, and yet the company paid $2,000 to the beneficiary. The real controversy is over the double indemnity to be paid in case of accidental death.

2. Accidental Means.

Counsel for the company admit that Roma’s death resulted from external and violent means, but contend, and this is their main contention, that it did not result from accidental means, as those words are used in the *499policy. They admit, what my independent investigation has revealed, that “no authority upon a similar state of facts can be found.” The authorities cited by counsel as analogous do not touch this case.

The case that most nearly approaches this is DeMello v. John Hancock Mut. Life Ins. Co., 281 Mass. 190, 183 N. E. 255, cited also in the majority opinion. In that case the insured was a member of a crew on a rum-running boat, engaged in illicit traffic in intoxicating liquor, and at the very time of his death he was engaged in the transportation of intoxicating liquor in violation of a Federal statute. The boat he was on was signalled by a Federal revenue cutter to “bring to,” but those in control refused to obey the signal, whereupon the revenue cutter fired upon the boat, killing the insured. The court held that the death did not result from accidental means, saying in part: “The insured knew that he was liable to be killed if those in control of the boat did not ‘bring to’ after the pendant [sic] and ensign had been hoisted, and a gun fired as a signal.” The distinction between that case and the case at bar is obvious. There, death resulted as a natural and probable consequence of the illegal act in which the insured intentionally was engaged at the very moment of his death; hence it was held to be not accidental. The facts in the case at bar are entirely different.

In Diamond v. New York Life Ins. Co., 42 Fed. (2d) 910, cited in the majority opinion, Diamond had murdered his wife. He was convicted and sentenced to death by electrocution. The sentence was executed. In a suit on a policy the plaintiff contended that the death was accidental within the meaning of the policy. The district court rejected such contention. Under the law of Indiana, murder was punishable by death, and the court held that Diamond “could reasonably have anticipated that his death would ensue by reason of the murder of his wife”; that death was not a remote probability”; that “when a man murders another he knows that his *500own life may be forfeited to the state”; and that “no legal casuistry or legerdemain can convert capital punishment into a death resulting from accidental cause.” I cannot see how that case supports the holding of the majority in the present case.

The connection between the criminal career upon which Roma had entered and his death is not sufficiently close to justify the conclusion that his death was the natural and probable consequence of his activities. True, rivalry among so-called gangsters occasionally has resulted in death; but when we consider the many thousands of persons reputed to be gangsters and the wide scope of their activities, such occurrences have not been so frequent as to justify us in saying as a matter of law that one entering upon such a career may expect death as the natural and probable consequence. The averment that “as a direct result” of the facts alleged, some rival, enemy or associate of Roma shot and killed him is a mere conclusion. No facts are pleaded showing how death was a direct result of the facts pleaded, and the pleaded facts are not sufficient to justify the conclusion. “Whether or not the means is accidental is determined by the character of its effects. Accidental means are those which produce effects which are not their natural and probable consequences. The natural consequences of means used is the consequence which ordinarily follows from its use —the result which may be reasonably anticipated from its use, and which ought to be expected. The probable consequence of the use of a given means is the consequence which is more likely to follow from its use than it is to fail to follow.” 6 Cooley’s Briefs on Insurance (2d Ed.), p. 5234.

It may be noted that the policy was issued November 22, 1930. That, according to the company’s plea, was at the very height of Roma’s criminal career, after Roma was twice convicted, and when his reputation was notorious. And yet, notwithstanding all that, the company considered Roma a good risk, for it issued the life in*501surance policy and took, and of course retained, the money he paid for such protection.

In my opinion, the trial court did not err in sustaining the demurrer to the answer or in rendering judgment for the plaintiff. The judgment should be affirmed.

Mr. Justice Hilliard concurs herein.