concurring in part and dissenting in part.
I concur in the reversal of the judgment of the district court as to both the $5,000 *1171policy and the $15,000 policy. However, I believe that a remand is unnecessary for the $15,000 policy as well as the $5,000 policy, and therefore I dissent in part.
Ordinarily I would consider a remand appropriate where the district court has incorrectly applied the law. However, in this case the inference that the fatal shooting was intentional is so great that no remand is necessary. Even though the inferences drawn from stipulated facts are questions of fact for the district court, Martin v. United States, 586 F.2d 1206, 1211 (8th Cir. 1978), Anderson v. Property Developers, Inc., 555 F.2d 648, 653, n. 4 (8th Cir.1977), in this case the only reasonable inference from the stipulated facts is that Betty Cockrell intended the fatal consequences of her actions. Although the facts are not without ambiguity,* the stipulation is that Betty Cockrell intentionally fired two shots at fairly close range. There was no evidence that she said anything to suggest that the shots were intended as a warning. The fact that she intentionally fired a second shot after the first one had struck her husband suggests that she was not firing the gun as a warning. The likelihood that Betty Cockrell did not intend to kill her husband is so remote that a remand is unnecessary.
Furthermore, a finding by the district court on remand that the killing was unintentional would be inconsistent with the district court’s conclusion that the death was accidental. The district court’s conclusion that the death was “accidental” is based on the definition of that word found in Mutual of Omaha v. George, 245 Ark. 670, 434 S.W.2d 307, 310 (1968), and Lincoln Income Life Insurance Co. v. Alexander, 231 Ark. 63, 328 S.W.2d 266, 269 (1959): “The killing of an unarmed person by one upon whom he is moving aggressively is by accident or accidental means if the unarmed person did not know and had no reason to believe that his adversary was armed and intended to kill him upon such advance.” (Emphasis added.) Only under the definition of “accidental” in these cases could one reasonably call Cockrell’s death “accidental.” Because the district court relied on these cases, Cockrell v. Life Insurance Co. of Georgia, No. 81-1014 mem. op. at 5 (W.D.Ark. Sept. 10, 1981), it could have concluded that the death was “accidental” only if Betty Cockrell intended to kill her husband. Therefore, the district court under this factual situation could not consistently conclude the death was accidental and that the killing was unintentional.
Because the district court could not reasonably conclude that Betty Cockrell unintentionally killed her husband, I would not remand the case, but reverse outright.
The stipulation does not say where Betty Cockrell was located in the house when she fired the rifle, how close she was to her husband, or whether the shots hit Cockrell directly or ricocheted.