See v. North American Accident Insurance

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 423 The plaintiff, who was the wife of one Fong Wing, and the beneficiary named in an accident insurance policy issued to him by the defendants, sues herein to recover for his death by shooting.

This is a companion case to Mar Shee v. Maryland Assur.Corp., 190 Cal. 1 [210 P. 269], and the facts in the two cases are the same, except that the language of the proviso or exception attached to the policy and relied upon by the defendant herein is materially different. The policy herein contained the following proviso:

"This policy is issued upon condition that the company assumes no liability hereunder should the accident, injury, disability, death, loss of limb or sight, result wholly or in part directly, or indirectly, from injury intentionallyinflicted on the insured by any person." (Italics ours.)

The principal contention of the defendant is that the evidence does not support the finding of the court that, "It is not true that the death of said Fong Wing was caused wholly or directly by personal injury intentionally inflicted upon him." It is apparent from the evidence that the person who did the shooting was at the time aiming at Fong Wing, and that the shots killed him. He was killed by someone who either intended to kill the said Fong Wing, or who intended to kill some other person and shot at Fong Wing, believing at the time that he was such other person. In the former event, the company clearly would not be *Page 424 liable and its counsel contend that the same result would follow the latter event. They argue that the person killed was the one at whom the shots were aimed, and that when it transpires that he was in fact the insured, it follows that the injury was "intentionally inflicted on the insured." We cannot adopt this view. To do so is to strike out from the proviso the words "on the insured" and make it read so as to exempt the company from liability for "injury intentionally inflicted by any person." [1] But the rule of interpretation is that "The whole of a contract is to be taken together, so as to give effect to every part, if reasonably practicable, each clause helping to interpret the other." (Civ. Code, sec. 1641) [2] The words "on the insured" cannot be deemed to have been inserted in the proviso for the purpose of qualifying the verb "inflicted," because they are unnecessary for that purpose and, so regarded, they are wholly superfluous. The entire contract of insurance concerns itself only with injuries to the insured. Injuries to any other person would be wholly irrelevant thereto. If, then, we are to give any effect to those words, which we must do, "if reasonably practical," they must be regarded as qualifying the adverb "intentionally," and as defining the intention of the person inflicting the injury. [3] We conclude, therefore, that the concurrence of the three elements is requisite to render the proviso operative: (1) an intention to injure, (2) directed at the insured, Fong Wing, and (3) the infliction of injury upon him. [4] From this it follows that the company is not exempted from liability if the person who shot Fong Wing intended thereby to shoot some other person. This conclusion finds support in the cases ofUtter v. Travelers' Ins. Co., 65 Mich. 545 [8 Am. St. Rep. 913, 32 N.W. 812], and Butero v. Travelers' Acc. Ins. Co.,96 Wis. 536 [65 Am. St. Rep. 61, 71 N.W. 811].