The death of Matthew J. Cluff, whose life was insured by the policy in suit, having been proved, the question arises whether his death occurred under circumstances bringing the case within the proviso making the policy void, in case the death happened under the circumstances specified therein. The proviso declares the policy shall be null and void in case the said Matthew J. Cluff shall die, among other causes, by his own hand, or in consequence *Page 434 of a duel, or by the reason of intemperance from the use of intoxicating liquors, or by the hands of justice, or in the known violation of any law of these States or of the United States, or of the said provinces, or of any other country which he may be permitted under this policy to visit or reside in. The counsel for the appellant has ably discussed the meaning of the word "in," as showing the construction to be given to the phrase: known violation of any law of these States, etc., and as showing that the word may express various relations, those of time, place and condition being the most common, but that sometimes it may express the relation of cause and effect. This shows, not that the relation expressed is shown by this particular word, but rather by the other words of the sentence in which it occurs. It is insisted by the counsel for the appellant, that in order to bring the case within that part of the proviso, the death must occur or the cause thereof happen while the assured is engaged in the known violation of the criminal law of the State, and that the proviso does not include the known violation of a law for the protection of the civil rights of parties, the only sanction of which is a civil action for redress. This was so held by the Supreme Court of Massachusetts in Cluff v. The PresentDefendant (13 Allen, 30), which was an action upon another policy issued by the defendant, containing a proviso similar in all respects to that in the policy now in suit. That conclusion was arrived at by the learned court, by an application of the maxim, noscitur a sociis. How this maxim can apply to the present case, or if applied, how the conclusion deduced by the court therefrom follows, I am unable to perceive. Among the associates is that of the death happening by reason of intemperance from the use of intoxicating liquors. It is obvious that, if the death happened from this cause, the case would come within the proviso, whether such use of intoxicating liquors was prohibited by the criminal law of the State where it occurred or not; applying the maxim to this, it might with equal propriety be argued that it was not the criminal law that was had in view by the parties, as that it *Page 435 was such law because death by the hands of justice is also included in the same proviso. To arrive at the intention of the parties to the contract we must consider the subject-matter in reference to which the language was used. What was the risk to be incurred by the defendant in insuring the life of Cluff? From the policy it appears that the defendant was willing to assume all the general risks to be incurred by such assurance to the extent of the amount insured. From the proviso, it appears that the defendant was unwilling to incur, and, therefore, refused to assume the additional risks to his life incurred, while the assured was engaged in the prohibited acts specified in the proviso, and, therefore, carefully provided that it should not be liable in case of death while engaged in the prohibited acts. Keeping these considerations in view, there will be but little difficulty in arriving at the intention of the parties, and, consequently, at the correct construction of the proviso. It is obvious that the violation of law in which the assured is engaged, whether such law be criminal or civil, must have some connection with the death, as cause and effect; not necessarily the immediate cause, as it is sufficient, if it puts in operation that cause. To illustrate: the sale of lottery tickets is prohibited by the criminal law of New York, no one would contend that had the assured died in the State of New York from heart disease, while engaged in selling lottery tickets, the case would have come within the proviso. It might have been within the strict letter, but not at all within the intention of the parties, for the reason that the violation of law, although criminal, had no possible connection with the death, and in no possible way increased the risk. Again the criminal law of New York prohibits profane cursing and swearing; suppose the death happened from some accident while the insured was violating this law, would this bring the case within the proviso? Clearly not, for the reasons above stated. Again, suppose the death occurred from injury received while the assured was attempting to obtain, by force, the possession of a chattel of which another was in peaceable possession, the title to which was claimed by both, but which *Page 436 was really in the assured, the case would come within the proviso, for the reason that the risk was increased, and the death caused by the violation of law by the assured, although such law was the civil only, the deceased having committed no breach of the peace or any indictable offence. The Massachusetts court held in the same case, when again before it (99th Mass., 318), that the case would have come within the proviso had the assured, at the time of being shot, in furtherance of his attempt to get the horses from Cox, been committing an assault and battery upon him. The court, I think, must have overlooked the fact that the violation of law, in which the assured was engaged, was eminently calculated to cause violence dangerous to his life to be inflicted upon him, and that the very object of the proviso was to exonerate the defendant from liability, should death occur from this voluntary increase of risk. It follows, that when the death occurs during the known violation of law by the assured, when such violation eminently tends to violence dangerous to his life, the case comes within the proviso. It requires but a bare statement of the facts as to which there was no conflict in the evidence, to show that Cluff was engaged in such known violation of law, at the time he received the fatal shot causing his death in a few moments. He went from Massachusetts to Louisiana early in the winter of 1863-4, and in January or February of that year leased a plantation within the lines occupied by the federal troops, of which one Cox was in possession, but by what title did not distinctly appear. Cox and his family resided in a house upon the plantation, and his stock were kept upon the plantation and consumed some of the feed thereon. Cluff obtained possession of a part of the plantation and made efforts to obtain possession of the residue, but what he did in this respect does not appear. Cox left home, leaving his family in his house and his son, a boy seventeen or eighteen years old, in charge of his affairs. Cluff made out a bill of what he claimed on account of the stock being upon the premises, and caused the same to be delivered to a woman at Cox's house. *Page 437 A few days after young Cox was going along the road with a pair of horses and wagon loaded with barrels of water. Cluff, upon being informed who it was, called to him to stop, and he did so. After some conversation not material, Cox asked the boy when he was going to pay the bill. The boy replied that he was not going to pay it at all. Cluff then said if he did not he would take the horses and stock. The boy replied he had better begin now. Cluff said, if you think I cannot take them I will show you, and thereupon went to the horse and unhitched the team, seized the lines, and told the boy to give them up, which he refused to do. Cluff then took out a pocket knife to cut the lines. The boy told him not to do that. Cluff desisted from that, went to the horses' heads, and commenced unfastening the lines from the bridle. The boy jumped from the wagon, went behind it, drew a pistol and fired at Cluff, hitting him in the side, causing death in a few moments. That Cluff knew he was violating law, is a proposition too plain for argument. The law of no country would justify his proceedings, which he must have known. The act was immediately calculated to lead to violence dangerous to his life and that of the boy. The case was thus brought directly within the proviso. The rule in this State is, that when facts are proved either by undisputed evidence or such a preponderance of evidence as to require the court to set aside a verdict finding to the contrary, it is the duty of the court to assume the truth of such facts and determine the legal rights of the parties upon such assumption. In Massachusetts it appears from the opinion of FOSTER, Judge (13 Allen, 316, supra), that the rule is different. He says, to establish this defence the burden of proof was upon the company, notwithstanding the evidence tending to prove a forfeiture came from the plaintiff's own witnesses. The case could not be withdrawn from the jury or a verdict for the defendant directed, because the defence rested upon an affirmative proposition, which the company was bound to maintain. The judgment of the General Term affirming that of the circuit *Page 438 dismissing the plaintiff's complaint must be affirmed with costs.
PECKHAM, J., concurs with GROVER, J., for affirmance.
Chief judge and ALLEN, FOLGER and ANDREWS, JJ., concur with RAPALLO, J., for reversal.
Judgment reversed. New trial ordered.