Glass v. Masons' Fraternal Acc. Ass'n of America

112 F. 495 | U.S. Circuit Court for the District of Northern Iowa | 1901

SHIRAS, District Judge

(after stating the facts). In the certificate or policy of insurance issued by the defendant company is found the following provision:

“Ninth. This insurance does not cover disappearances; nor injuries of which there is no visible marks upon the body; nor accident, nor death, nor disability resulting wholly or partly, directly or indirectly, from any of the following causes, or while so engaged or affected: Suicide, sane, or insane; voluntary exposure to unnecessary danger; walking or being on a railway bridge or roadbed (railway employes excepted).”

On behalf of the plaintiff it is claimed that this provision, although it is contained in the policy delivered to the insured and by him accepted, does not in fact enter into or form part of the contract of insurance which is the basis of this suit, for the reason that this provision is not found in the application 'signed by McNally. In view of the reference to the application contained in the policy, it may well be held that the application is to be deemed to be part of the written contract between the parties; or, in other words, that in arriving at the true construction of the contract of insurance regard must be paid to the contents of the application, as well, as to those of the policy. It is equally true that it must be held that the insured understood that a policy of insurance, based upon his application, would be issued to him by the company, in case his application was accepted and approved, which policy would state fully and at length the terms and conditions of the contract. In the application is not found a statement of the limitations and exceptions defining the extent of the liability of the company, but it is practically confined to the statements with respect to the age, place of residence, business occupation, and personal habits of the applicant, with a statement of the amount of insurance and indemnity desired. The facts of the case do not present the question that sometimes arises when a provision in the policy is found contradictory to an express provision contained in the application, or in cases of which McMaster v. Insurance Co., 22 Sup. Ct. 10, 45 L. Ed. -, is a sample, wherein the company, without notice to the insured, inserts in the policy some provision, which, if enforced, would materially change the terms of the contract as recited in the application. In the case at bar the ninth provision found in the policy, and hereinbefore cited, does not contradict, change, or modify any express provision found in the application signed by the insured, and there are no facts shown which would justify the court in holding that the company is estopped from relying on the cited provision of the policy. There is no evidence tending to show that the insured was induced to enter into the contract of insurance by any statements or representations differing from those found in the application and the policy based thereon, and, as the insured continued to pay the sums coming due as premiums under the terms of the policy for a period of eight years after its delivery to him, it must-, be held that he was cognizant of its provisions, and was-content to accept the same as the evidence of the contract existing between himself and the company. Thus we reach the questions whether McNally did not voluntarily expose himself to unnecessary danger, and thereby bring about the accident resulting in his death; and, further, whether in fact he was not on a railway roadbed when injured, in such sense that he was not then under the protection of the policy. The facts show that when McNally left the office in which he was employed his purpose was to reach the ■railway train that would take him to the town in which he lived. This train was started from the Union Depot, and this was the place ■ furnished by the railway company for the use of the persons desiring to take passage on the train. The railroad company did not invite its patrons to take the cars on Beach street at the place ■where the accident happened. This locality was not held out as a proper or safe place for the people to come to in order to get upon .the cars. It cannot be said that McNally was misled with respect to the dangers- incident to crossing Beach street and the space beyond it at the place where the accident happened through any action or want of action on part of the railway company or on part of the defendant company. The place where the injury was received was not part of any street or pathway leading from the office wherein McNally was employed to the cars which he was aiming to reach. In order to get upon the train which would take him to his home, it was not necessary that he should get upon the cars when they were placed on the track between West Taylor and Forquer streets. If he had chosen to go upon the viaduct which spans Beach street, he would- have avoided all the danger of crossing the numerous railway tracks which he undertook to pass over, and could have readily, gone to the Union Station for the purpose of getting on the proper train. Instead of so doing, he voluntarily undertook to cross some half dozen railway tracks, and to subject himself to the danger caused thereby, in actual violation of the duty he owed to himself and to the railway companies. There can be no question, under the evidence, that the place where McNally undertook to cross was a place of great and known danger. McNally chose to place himself in this position of danger, not in the performance of any duty he owed to his employers, to the. railway company, or to the public, but simply that for his own convenience he might save a little distance in-reaching the Union Station. Under these circumstances, it must be held that the dangers to which McNally subjected himself were great, and that he, knowing their existence, voluntarily and unnecessarily exposed himself thereto, and that such action on his part defeats a recovery on the policy. The conclusion thus reached obviates the necessity of considering the questions arising out of the provisions in the policy with respect to the insured being on a railroad bed when the accident happened, and which have been very fully argued by counsel, but which will not be further passed upon in this.opinion. ...

Judgment for defendant.