90 Ala. 201 | Ala. | 1890
1. The first plea of the defendant being a general denial of all the allegations of the complaint, necessarily put in issue the execution of the written policy of insurance which was the foundation of the suit, as well as the plaintiff’s ownership of the policy, as the beneficiary under it. The plea should, therefore, have been supported by affidavit,- and for want of such verification it was subject to the demurrer, which was interposed to it and was properly sustained by the trial court.—Mobile & Montgomery Railway Co. v. Gilmer, 85 Ala. 423; Code, 1886, §§ 2676, 2770; Manning v. Maroney, 87 Ala. 563.
2. The third plea was too vague and uncertain in its averments, and, therefore, necessarily ambiguous in meaning. It, moreover, states legal conclusions instead of facts, and was subject to demurrer on these and other grounds, sustained by the court.—Carmelich v. Mims, 88 Ala. 335.
3. The fourth plea was subject to like objections, as stated in the demurrer to it.
4. The court erred in not sustaining the plaintiff’s motion to exclude the policy of insurance, on the ground of variance. The complaint describes the policy as running for the term of one year from date, vdiich was Feburuary 18th, 1888. We discover nothing in the terms of the policy, or in the other evidence, which indicates how long the risk was to run. This may be an inadvertent omission; but, as the bill of exceptions purports to contain all the evidence, the objection to the admission of the policy should have been sustained. In addition to this we may observe, that the evidence shows that the accident, which produced the death of the insured, happened on May 30th, 1889, or more than a year after the issue of the policy, and the risk was not therefore covered by the time for which the policy described in the complaint was to remain in force. This, of itself, is fatal to any recovery, as the facts of the case now stand.
5. The policy insures against death and certain other injuries, effected through “external, violent, and accidental means.” That the death of the insured resulted from precisely
6. One of the exceptions, not covered by the policy, is “voluntary exposure to unnecessary danger.” It is contended that the facts of the present case bring it -within the terms of this exception. The phrase — “voluntary exposure to unnecessary danger” — involves the idea of “intentionally doing some act which reasonable and ordinary prudence would pronounce dangerous.” As said in an analogous case, where the same phrase was construed: “The approach to an unknown and unexpected danger does not make the act a voluntary exposure thereto. The result of the act does not necessarily determine the motive which prompted the action. The act may be voluntary, yet the exposure involuntary. The danger being unknown, the injury is accidental.” —Burkhard v. Traveller's Ins. Co., 102 Penn. St. 262; 48 Amer. Rep. 205.
Death by accident has been defined to be “death from any unexpected event which happens as by chance, or which does not take place according to the usual course of things;” North Amer. Ins. Co. v. Burroughs, 69 Penn. St. 43; and again, as “any event which takes place without foresight or expectation of the person acted upon or affected by the event.” —May on Insurance (2d Ed.) § 520. So it is said in 1 Amer. & Eng.. Encyc. Law, p. 87: “An accident, inits application to insurance policies, has been defined as an injury which happens by reason of some violence, casualty, or vis major to the assured, without his design, or consent, or voluntary co-operation.” — See, also,, Schneider v. Providence Life Ins. Co., 1 Amer. Rep. 157; Tuttle v. Traveller's Ins. Co., 45 Ib. 316-19, note.
The evidence in the record fails to satisfy us that the insured was guilty of voluntary exposing himself to unnecessary danger, and any degree of negligence short of this wall not operate to defeat a recovery. — May on Insurance (2d Ed.), § 530. He was approaching the arriving railway train, for the purpose of getting the mail for the post-master. True, he was moving rapidly. But he made an effort to check his speed, as he reached the sloping bank which led down to the side-track of the railroad; and in doing this, he stumbled, and came in collision with the engine. But for the accident of stumbling, the inference is fair that he would not have been injured. The efficient and proximate cause of the death, therefore, was the
The injury received was clearly not “intentional” within the meaning of one of the exceptions of the policy. Nor, in our opinion, can it be properly construed to be a “walking or being-on a railroad bridge or road-bed,” within the meaning of another excepted class of cases contained in the policy, as is contended for by the appellant. Exceptions of this kind are construed most strongly against the insurer, and liberally in favor of the insured. This is now the settled rule for construing all kinds of insurance policies, rendered necessary especially in modern times to circumvent the ingenuity of insurance companies in so framing contracts of this kind as to make the exceptions unfairly devour the whole policy. Accordingly, in Wright v. Sun Mutual Life Ins. Co., 29 Upper Canada C. P. Rep. 221 (1878), a well considered case of insurance against accidents, it was held that using a railroad track merely to cross a street, through which it ran, was not a “walking on the track” within the meaning of a prohibition of the policy, for accidents resulting from which no liability was to be incurred. A fair and reasonable construction of the phrase in question is, voluntarily and intentionally being or walking on the railway roadbed, not being there by force of accident and involuntarily, for a mere comparative moment of time.—Burkhard v. Traveller’s Ins. Co., 48 Amer. Rep. 205; Schneider v. Traveller's Ins. Co., 16 Amer. Rep. 618; 1 Amer. & Eng. Encyc. Law, 92.
These principles will be sufficient, without more, to enable the court below upon another trial to reach a proper conclusion.
Reversed and remanded.
