Appellee brought separate suits against appellants in the circuit court of Clark County to recover the amount of the indemnity provided in each policy for the death of her husband, through external, violent and accidental means.
Each appellant defended upon two grounds: first, that the policies had lapsed for the nonpayment of premiums; and, second, that the insured's death was not accidental. The causes were consolidated for the purposes of trial, and, at the conclusion of the testimony, the trial court instructed the jury to return a verdict in each case for the amount sued for, penalty, attorneys fee, and costs, over the objection and exception of appellant, and from the verdicts and consequent judgments an appeal has been prosecuted to this court.
At the time the policies were issued, the insured, a negro, was working for the Missouri Pacific Railroad Company in section gang No. 52, and when he received the policy, he gave each of the appellants an order on the Missouri Pacific Railroad Company to deduct the *Page 773 premiums from his wages and pay same to the appellants. The Missouri Pacific Railroad Company deducted premiums down to and through the month of June, 1927, but failed to make the deduction in July, August and September, because, according to appellants' admission in the course of the trial, the Missouri Pacific Railroad Company had not been asked to pay the premiums for those months. The insured was shot in the back while getting in a box car containing merchandise in the yard at Gurdon on October 23, 1927, in which yard he was then employed. He was working in section gang 52 then under the name of H. A. Harry through an error of the paymaster in making up the payroll, but there is no question about him being the same person who was insured. In the meantime he had been transferred for a while to section gang 11, then to section gang 4, then back to section gang 52. After he was shot by the special agent of the Missouri Pacific Railroad Company, the special agent had the car moved down to the station, where it was entered by the town marshal of Gurdon. The special agent stated that he had shot him. The insured had been shot five times, one shot at least entering his back and passing entirely through his body. His body was lying in the extreme end of the car. A knife supposed to belong to him was a short distance from his body, and it appeared that he had used it to open a box of cakes, out of which he had been eating. A pistol supposed to belong to him was found in the doorway with an empty cartridge in it. A disinterested witness stated he had heard and seen every shot that was fired by the sound and flash it made, and that every one of them was fired from the same place and in the same direction. An inquest was held, and the special agent was exonerated. None of the evidence introduced at the inquest appears in this record. The special agent did not testify in the case.
Based upon this undisputed testimony, the trial court instructed verdicts against appellants on the theory that it was their duty to collect the premiums on the orders which they had procured from the insured, and that their *Page 774 failure to do so did not lapse the policies, and that no justification was shown for the homicide.
The first finding was correct because the insured had worked continuously for the railroad company after he gave the order and earned sufficient money to pay the orders had they been presented. It was admitted in the course of the trial that, if the railroad company had had the orders, it would have paid the premiums. The case of Missouri Life Insurance Company v. Walker, 67 Ark. 147,53 S.W. 675, cited by appellants, is not in point. It was stated by the court in that case that it was not clear that the railroad company had money in its hands out of which to pay the last premium, and therefore that the insurance company was not required to notify Walker of the failure to pay the order because he knew he left no money with the company to pay it and must have known, without notice, that the order had not been paid. Not so in the instant case, but, on the contrary, it is admitted in the record that if the insurance companies had presented the orders, they would have been paid. It is a case of negligence on the part of appellants to protect themselves when they had an opportunity to do so through the method devised by them to collect their premiums, and they cannot take advantage of their own neglect to cancel the policies.
The second finding was correct also. The killing was admitted, and the burden was thereby cast upon appellants to show that the killing was justified. This court said in the case of Metropolitan Casualty Insurance Company v. Chambers, 136 Ark. 84, 206 S.W. 64: "It is the settled law in this State that proof of death of an insured from injuries received by him raises a presumption of accidental death within the meaning of an insurance clause insuring against injury by external, violent and accidental means, and this presumption will continue until overcome by affirmative proof to the contrary on the part of the insurer."
In the case of Aetna Life Insurance Company v. Little, 146 Ark. 75, 225 S.W. 298, this court defined an accidental killing within the meaning of the terms of these and like policies, as follows: "If a result is such *Page 775 as follows from ordinary means, voluntarily employed, in a not unusual or unexpected way, it cannot be called a result effected by accidental means; but if, in the act which precedes the injury, something unforeseen, unexpected, unusual occurs which produces the injury, then the injury has resulted through accidental means."
According to this record, the special agent attacked and killed the insured because he thought he was robbing a car. The insured was working in the yard and may have had authority to enter the car and was killed while in the act of entering it. If the pistol at the door belonged to the insured, it was not shown that he used it or attempted to use it or the knife on the special agent. The empty cartridge may have been in the pistol all the time. The only use made of the knife was to open a cake box. He was eating cakes at the time, and none of these things justify homicide.
No error appearing, the judgment is affirmed.