years from the date of the policy, the liability of the company should not exceed the amount of the premiums paid. * * *
Mr. Justice SEARS delivered the opinion of the court. * * *
The second contention of appellant's counsel is that it appears from the evidence that the insured died in consequence of his own criminal action, and therefore under the terns of the contract of insurance there can be no recovery beyond the amount paid for premiums. We are of opinion that this contention must be sustained. It is true that there was some slight conflict in the evidence as to the fact of Haley's participation in the robbery. But the evidence is overwhelming to the effect that he, together with King, had robbed Britton a few moments before he was shot. Whatever conflict may have arisen by reason of his affidavit and King's testimony is disposed of by the frank admission of counsel for appellee when in his brief he admits that the insured was a party to the robbery. The question is, then, was the shooting by which he was killed a consequence of his criminal action. He was shot by a police officer a few minutes after the robbery, while attempting to escape with the money which he had taken from Britton. How can it be fairly held that he was not engaged in a criminal act at the very moment of the shooting, viz., carrying away the money of another which was the proceeds of the robbery of that other? Britton, the man robbed, had never lost sight of Haley from the time of the robbery until the was accosted by the officer. Whether the officer actually had his hand upon Haley and formally arrested him before he ran away or not, in any event Haley, in trying to escape with Britton's money, which he had by reason of having robbed Britton, was guilty of a criminal act, and in the course of it and consequence of it he was killed. The very going away with the property of Brit-ton was the continuation of the crime. * * *
We are of opinion that it would be a strained and unsound process of reasoning by which it could be concluded that the brief interval of time between the robbery and the shooting, during which the insured was making off with the fruits of the robbery, so separated him from the criminal act as to obliterate all relation between the criminal act and the killing. * * *
There can, therefore, be no recovery in this action beyond the amount of premiums paid, as provided by the terms of the policy. It is undisputed that the premiums paid aggregate $318. The judgment of the Circuit Court is reversed and judgment will be entered here for appellee against appellant for the sum of $318. The costs in this court will be adjudged against appellee. Reversed, with judgment in this court.75
15 Accord: United Order v. Overton (1919) 203 Ala. 335, 83 So. 59, 13 A. L. R. 672, Comment (1920) 18 Mich. L. Rev. 335.
But if the insured had assaulted another but was retreating when he was shot by the other, or is shot and killed while acting in self-defense, the policy is not