75 Ind. App. 295 | Ind. Ct. App. | 1920
This was an action by the administrator of Frank H. Puthoff, deceased, upon a policy of insurance issued by appellant to said Frank H. Puthoff, providing indemnity against loss of life by accident.
To a complaint in one paragraph, the appellant filed answer in two paragraphs, the first being a general denial, and the second admitting partial liability, and rely
A reply in denial to this paragraph of answer closed the issues, which were submitted to a jury for trial, resulting in a verdict for plaintiff for the full amount named in said policy.
The only error presented relates to the action of the court in overruling appellant’s motion for a new trial.
The questions presented for our consideration raised under said motion, relate to the sufficiency of the evidence to sustain said verdict, error in giving certain instructions, and error in refusing to allow appellant to amend its answer during the trial. It is insisted that under the undisputed facts of this case the said deceased voluntarily and unnecessarily exposed himself to unnecessary danger, or obvious risk, of injury, which caused his death, and that he was therefore, at the time, he received such injury, acting within the terms of said condition in said policy, limiting the benefits thereof to one-fifth of the face of the policy.
In the case of Travelers’ Ins. Co. v. Randolph (1897), 78 Fed. 754, 24 C. C. A. 305, which was an action upon a policy of insurance, the court said: “What do the words ‘voluntary exposure to unnecessary danger’ in the contracts in suit import? * * * The words ‘voluntary exposure to unnecessary danger,’ literally interpreted, would embrace every exposure of the assured not actually required by the circumstances of his situation, or enforced by the superior will of others, as well as every danger attending such exposure that might have been avoided by the exercise of care and diligence upon his part. But the same words may be fairly interpreted as referring only to dangers of a real, substantial character, which the insured recognized, but to which he nevertheless purposely and consciously exposed himself, intending at thé time to assume all the risks of the situation. The latter interpretation is most favorable to the assured, does no violence to the words used, is consistent with the object of accident insurance contracts, and is therefore the interpretation which the court should adopt. One of the accepted meanings of the word ‘voluntary’ is ‘done by design or intention; purposed; intended.’ ”
In the case then under consideration by the court, one Mitchell had fallen from a moving train and thereby received injuries which caused his death. The evidence showed that he had gone to the platform of. the sleeping car in which he had been riding as a passenger, and had been standing on the steps while the train was running. The company defended on the ground that the deceased had voluntarily exposed himself to unnecessary danger, and that therefore there was no liability within the terms of his policy. The District Judge had charged
This instruction was approved by the Circuit Court of Appeals, Sixth circuit, as being '.expressive of the law, the court saying: “There are, it must be admitted, authorities that look the other way. But we are of the opinion that the better reason is with the cases holding that the words ‘voluntary exposure to unnecessary danger/ in accident policies such as this one here in suit, import a consciousness of the danger, and an intention to risk the consequences of exposing one’s self to it.”
In the case of Union Casualty, etc., Co. v. Harroll (1897), 98 Tenn. 591, 596, 40 S. W. 1082, 60 Am. St. 873, the court, in discussing the effect of the clause now under consideration contained in an insurance policy, said: “A voluntary act is an intentional one — one which the actor of his own will, with the power of choice, determines to do or perform. So this condition is to be read as the equivalent of one exempting the insurer from liability where death results from an intentional exposure of one’s self to unnecessary danger. Both terms imply some degree of knowledge or apprehension of the danger incurred and a purpose to take the risk.”
In the case of Burkhard v. Travelers’ Ins. Co. (1883),
In the case of Conboy v. Railway, etc., Assn. (1897), 17 Ind. App. 62, 46 N. E. 363, 60 Am. St. 154, the clause relied upon was, “voluntary exposure to unnecessary danger,” and the court said: “Giving the words definitions, and the language a meaning most unfavorable to the insurer and most favorable to insured, the exception may be construed as contemplating knowledge on the part of the insured of the existence of the danger or peril and an encountering of it by him willingly.” See also Commercial Travelers, etc., Assn. v. Springsteen (1900), 23 Ind. App. 657, 55 N. E. 973.
Each of the instructions given, of which complaint is made, are in harmony with the law as thus declared, and the court did not err in giving the same.
Neither did the court err in refusing to allow the appellant to amend its said answer. The proposed amendment would, if it had been allowed, simply have introduced into the case an element which could have no controlling influence, it was immaterial to the matter in suit.
The question as to whether the deceased knew of the presence or approach of said car by which he was struck and killed, and knowing such fact voluntarily exposed himself to the danger of being struck by said car if he