Harper's Administrator, Plaintiff in Error, vs. The Phœnix Insurance Company, Defendant in Error, 18 Mo. 109

Scott, Judge, delivered the opinion of the court. This was an action on a life policy. One of the conditions of the policy was, that, should Harper die in the known violation of a law of this state, then it should be void.

The case was submitted to the court without a jury, and after hearing a great deal of evidence in relation to the manner by which Harper came to his death, who was killed in a fight begun on the street, and which was afterwards continued in a store house, where Harper was shot with a bullet from a pistol, the court found the facts to be : “ That Harper, by opprobrious and insulting language, provoked a verbal altercation with Coryell, and that during said altercation, said Harper drew a pistol and attempted to shoot said Coryell; that thereupon, Coryell, in self-defence, shot said Harper, whereby said Harper died, in the known violation of a law of this state.” 1.

The evidence preserved in the record shows, that the finding of the court is defective in not stating the circumstances immediately preceding the death of Harper. If he was slain under a state of facts that would make his death manslaughter, we are not prepared to say that the policy would thereby be avoided. To have that effect, his death must have been under circumstances that would make the slayer excusable. 2. The court finds that the killing was in self-defence. That may be so; but what constitutes a killing in self-defence, is a question of law. The case found is one clearly of self-defence.

But there are circumstances detailed by the witnesses which raise a question, whether the killing was in self- defence or criminal. These circumstances should be found and stated with,precision, in order to determine that question. This omission in the finding renders it impossible for this court to declare whether the policy was avoided by a breach of the condition. Judge Ryland concurring, the judgment will be reversed, and the cause remanded. Judge Gamble not sitting.