HUTTO v. ATLANTIC LIFE INS. CO.
No. 3238.
Circuit Court of Appeals, Fourth Circuit.
April 13, 1932.
HAYES, District Judge, dissenting.
M. E. Zeigler and A. J. Hydriek, both of Orangeburg, S. C., for appellant.
Alexander W. Parker, of Richmond, Va., and Alva M. Lumpkin, of Columbia, S. C. (Thomas & Lumpkin, of Columbia, S. C., on the brief), for appellee.
Before PARKER and SOPER, Circuit Judges, and HAYES, District Judge.
PARKER, Circuit Judge.
This is an appeal from a judgment in an action on two life insurance policies. The company paid the face of the policies, but contested liability on the double indemnity provisions contained therein. The judge below directed a verdict for the insurance company on the ground that the evidence showed that at the time of his death insured was engaged in the commission of a crime involving moral turpitude, and that, because of this fact, there was no liability under the double indemnity provisions.
Each policy sued on contained a provision to the effect that the company would pay double the face of the policy if the death of the insured should result directly, exclusively, and independently of all other causes from bodily injury effected solely through external, violent, and accidental means. A condition of the provision was that the injury should not be intentionally inflicted by another person or by the insured himself, and should not occur while the insured was “engaged in any violation of law involving moral turpitude.”
Insured, a young white man, was shot on a Sunday morning at a house where lived a colored woman and her seventeen year old daughter and some younger children. The house did not bear a good reputation. Insured had gone there with another white man who, for some reason, was not called as a witness. - The only testimony as to the manner in which he was shot was given by the seventeen year old colored girl. She testified that the insured came into the back room of the house where she was and assaulted her in an indecent manner; that she picked up a pistol which was lying near by and pointed it at the insured; that in the scuffle which ensued the pistol was discharged, the bullet striking the insured and causing his death. While there were some minor contradictions in the testimony of this witness, there was no evidence that the shooting occurred other than as she testified, and any hypothesis to the contrary is based upon pure speculation and not supported by any proof.
We agree that this evidence does not show conclusively that insured was engaged in an assault with intent to commit rape. To constitute such crime there must be intent to have camal knowledge of a female forcibly and against her will and notwithstanding any resistance on her part; and, in view of the surrounding circumstances here, the jury might have inferred that, while insured intended to have sexual intercourse with the witness, he did not intend to ravish her if she continued to resist. But upon the evidence there is no escaping the conclusion that the insured was engaged in an indecent assault upon the witness. The least touching of the person of another in rudeness or in violence constitutes an assault and battery. And there can be no question but that an assault upon a female with the object of having sexual intercourse with her, even if the intent to ravish be not present, is an “assault and battery of a high and aggravated nature” under the law of South Carolina. State v. Jones, 133 S. C. 167, 130 S: E. 747; State v. Dalby, 86 S. C. 367, 68 S. E. 633.
And we think it equally clear that such an assault is a crime involving moral turpitude within the meaning of the provision of the policies sued on. A crime involves moral turpitude if it involves an act of baseness, vileness, or depravity when judged in the light of the social duties which a man owes to his fellow man or to society in general. 25Cyc 272; 36 C. J. 1194; Sipp v. Coleman (C. C.) 179 P. 997; In re Bartos (D. C.) 13 F.(2d) 138; Skrmetta v. Coykendall (D. C.) 16 F.(2d) 783. Standards of morals change with the changing conditions of civilization; but it is beyond question that, when judged by the moral standard of this age and country, an indecent assault upon a female is a crime involving moral turpitude.
It was while engaged in the commission of such a crime that the insured received the injury that caused his death; and we think it clear that the injury was caused by the unlawful conduct in which he was engaged. Whether insured was shot by the accidental discharge of the pistol while he and witness were scuffling, or whether the pistol was dropped in the scuffle and fired as it struck the floor, the shooting was the result of the insured’s engaging in the assault upon the witness. See Travelers’ Insurance Co. v. Seaver, 19 Wall. 531, 22 L. Ed. 155; Bloom v. Franklin Life Ins. Co., 97 Ind. 478, 49 Am. Rep. 469.
An interesting question, which we need not decide, is whether under the terms of this policy it was necessary for any causative connection to be shown between the unla.wful act and the injury. It is said that the contract embodied in clear and unambiguous language that the double indemnity provision should not cover death resulting from an injury which should occur while the insured was engaged in any violation of law involving moral turpitude. And it is argued that the purpose of this provision is to guard against the increase of hazard which would result from the insured’s being so engaged, and that its result is to make the double indemnity provision inapplicable in the ease of an injury occurring during the period that he is so engaged, irrespective of the cause of the injury. There is much to be said for this contention. Certain it is that it is not the function of the courts to make contracts, but to construe them; and if the parties to a contract of insurance provide that same shall not cover a given risk while insured is engaged in certain conduct, or occupying a certain status thought to involve an increase of hazard, there would seem to be nothing for the courts to do but to enforce their contract as they have made it. Flannagan v. Provident Life & Accident Ins. Co. (C. C. A. 4th) 22 F.(2d) 136; Order of United Com. Travelers v. Greer (C. C. A. 10th) 43 F.(2d) 499. We need not decide this question, however, as we are satisfied that the causal connection in this ease was clearly established by evidence which was not controverted.
It is true that, when it was established that the death of the insured was caused by a pistol shot, the burden rested upon the company to bring the ease within the terms of the condition upon which it relied; but, as stated above, we think that the evidence clearly did this. In the federal courts it is the duty of the judge to direct a verdict where the evidence is all one way, or where it so clearly supports a conclusion that a verdict to the contrary would not be allowed to stand. The evidence here was of that sort. It clearly shows that the death of insured resulted from an injury which occurred while he was engaged in a violation of law involving moral turpitude, and which resulted from such violation. There is no evidence, in our opinion, to the contrary; and verdicts must rest upon evidence and not upon supposition.
There was no error, and the judgment below will be affirmed.
Affirmed.