holding that insurer failed to sustain burden of proving loss came within scope of exclusionary clause
How later courts described this case
- holding that insurer failed to sustain burden of proving loss came within scope of exclusionary clause
- explaining that the insurer has the burden to prove an exclusion applies
- insurer bears burden of proving applicability of exclusionary clause
Written by the judges who cited it.
The opinion
SUMMERS, Justice,
dissenting:
The death of a person by a gunshot wound to the head, in the absence of circumstances indicating suicide, suggests that the death was a homicide. Since the insurance policy provides that it pays only the basic death benefits (and not the double indemnity) if the death is caused by “homicide, intentional or unintentional”, I must conclude that the defendant insurance company has made a prima facie showing of homicide in defending the widow’s suit for double indemnity. The majority has avoided this result by adopting its own definition of homicide.
Our legislature has provided us with the following definition at 21 O.S. 1981 § 691: “Homicide is the killing of one human being by another.” Section 692 provides that the homicide may be either murder, manslaughter, excusable or justifiable. Section *800 731 tells us that homicide by accident or misfortune is excusable homicide.
These definitions are not peculiar to Oklahoma. Black’s Law Dictionary, 661 (rev. 5th Ed. 1979) defines homicide as: “the killing of one human being by the act, procurement, or omission of another.” Black’s further shows us that homicide per infortunium is the latin for
“[H]omicide by misfortune, or accidental homicide; as where a man doing a lawful act, without any intention of hurt, unfortunately kills another; a species of excusable homicide. 4 BlComm. 182; 4 Steph.Comm. 101.” (Id at 661)
The majority quotes from and apparently relies on Wozniak v. John Hancock, 288 Mich. 612 , 286 N.W. 99 (1939) to the effect that homicide’s “meaning has remained unchanged for centuries”, that “it is one of the most definitely circumscribed words in the English law”, and that it refers to the “unlawful” killing of one human being by another. The Michigan courts’ statement is, at the least, unique. It contradicts not only Black’s, supra, but the following authorities defining homicide:
Webster’s Ninth New Collegiate Dictionary (1983):
“a killing of one human being by another”,
40 Am.Jur.2d Homicide § 1:
“the term homicide is generic, and embraces every mode by which the life of one person is taken by another”.
Oram’s Dictionary of the Law (1983), Publishing Co.
“Killing another person (not necessarily a crime)”.
Griffis Law Dictionary (1975):
“Any killing of a human being; it does not necessarily constitute a crime”. Cochran's Law Lexicon, Gilmer’s Revision 5th Edition (1973);
“Destroying the life of a human being. It may be (a) excusable as when committed by accident, and without any intent to injure_”
Oxford Companion to Law (1980):
“The generic term for the causing, or accelerating, the death of a human being by another human being.
Radin Law Dictionary 2nd Ed. 1970: “Any killing of a human being, accidental or intentional, legally justified or not.”
Ballentine’s Law Dictionary 3rd Ed. 1969:
“The killing of a human being under any circumstances, by the act, agency or om-mission of another.” 1
If the policy’s homicide exclusion was ambiguous it should be construed against the company. Timmons v. Royal Globe, 653 P.2d 907 (Okl.1982); Hicks v. Durham Life, 23 N.C,App. 725, 209 S.E.2d 846 (1974). But it excluded the double coverage for death from “homicide, intentional or unintentional.” By its very language it appears to have intended to exclude death caused accidentally, unintentionally, or unfortunately by the act or omission of another person. Perceiving no ambiguity I am unwilling to rewrite the policy to require a showing that the excluded homicide be culpable or unlawful. The parties’ use of the word “unintentional” precludes that interpretation. Therefore, I respectfully dissent.
I am authorized to state that Justices Hargrave and Opala share the views herein expressed.
. For additional definitions in accord see: Shorter Oxford English Dictionary 2nd Ed. (1936); The Guide to American Law, Everyone's Legal Encyclopedia (1983); Random House Dictionary of the English Language (1967); Stroud’s Judicial Dictionary, 3rd Ed. (1952); Bouvier’s Law Dictionary, 3rd Revision (1914); American Heritage Dictionary of the English Language (1969); The Plain Language Law Dictionary (1981); Running Press Dictionary of the Law, 1976; Cyclopedic Law Dictionary 2nd Edition (1922); Funk & Wagnalls New Comprehensive Dictionary (1982).