104 Mo. App. 306 | Mo. Ct. App. | 1904
The plaintiff sued an accident insurance company, on a policy of insurance to recover one" thousand dollars. The policy was taken by Oscar Jamison, in favor of his father, the plaintiff. The contract contained, among other things, a stipulation that the company would pay to the plaintiff one thousand dollars if the insured, during the life of the policy, should meet death by external, violent and purely accidental means. The deceased was employed by the Grulf, Colorado & Santa Fe Railroad Company and was killed, presumably, by being struck by a train. He was a bridge carpenter, but had been detailed to flag trains and see that their speed was reduced to four miles an hour before they passed over the company’s bridge No. 266. At six o’clock in the evening of April 15, 1902, he left Sanger, a station on the railroad in the State of Texas, with orders to go to the bridge and flag all trains
The answer, besides a general denial, pleaded that the deceased was sent to the bridge to flag trains, which duty required him to keep awake and to stand on the east side of the bridge; but that he unnecessarily exposed himself to danger and to obvious risk of injury by going to sleep on the track, or so near the track as to be struck by a passing train.
1. The point is made against the petition that it does not state the mortal wound was received by accident, but on the contrary disclaims any knowledge of how it was caused. The petition states that on the day mentioned the “insured sustained personal, bodily injuries, through external, violent and purely accidental causes within the terms of said policy; which injuries solely and independently of all other causes, resulted in the death of said Oscar Jamison within ninety days of the accident, to-wit, within two days thereof, in that while he was employed as a bridgeman, as aforesaid, he was struck upon the head with some hard substance inflicting a mortal wound, from which he, Oscar Jamison, died on the--. day of April, 1902.” That language is precise and full enough to constitute a good averment that the insured met death by an “external, violent and purely accidental cause.” The only basis for the attack on the petition is this sentence following the above allegation: “A more particular description of the cir.cumstances of said accident can not here be given
2. The principal defense rests on a term of the policy which stipulated that the amount to be paid if the insured lost his life, or received any of certain designated injuries “from unnecessary exposure to danger or to obvious risk of injury,” should be one hundred dollars. The casualty company tendered that sum and contends that thereby it fully discharged its liability, as the evidence conclusively established that the deceased was killed from exposing himself to unnecessary danger and to a risk which was obvious. This contention raises these questions: "What is the meaning of the term of the policy invoked as a defense? Is the inference inevitable from the evidence, that the deceased came to his death under circumstances that make the provision control the company’s liability?
It was not the intention of the parties to the contract of insurance to exempt the company from payment of the maximum indemnity — one thousand dollars — if death resulted from a hazard incident to the duties of the insured as a bridgeman. This appears from the first clause of the policy, which says the insured “is entitled to indemnity on the basis of his liability to accident in the occupation of bridgeman, in the event of personal, bodily injuries.” By virtue of that provis
The first point of doubt is as to what sort of negligence on the part of the insured, contributing to his death, would entitle the company to pay the minimum liability, and whether merely inadvertent conduct would be sufficient to do so, or only a conscious incurring of needless risk. Apart from the adjudications on the question, I should be inclined to the opinion that, as a main purpose in taking a policy of accidental insurance is to procure indemnity against the consequences of the insured party’s carelessness and oversights, a stipulation against “exposure to unnecessary danger or to obvious risk of injury,” excludes from the force of the policy, accidents occasioned by that positive sort of negligence which, in personal injury litigation, falls within the doctrine of assumed risk, and consists of knowledge of a danger and willingness to encounter it; but does not exclude such as happen from the mere failure of the insured to shun a danger unknown to him, but which might have been known by due care; or what is denominated, contributory negligence. This view would require, to bring into operation the minimum indemnity clause of the policy, volition on the part of the insured in needlessly exposing himself to danger, as in. cases where the word “voluntary” is used. It seems to me the intention of the contract implies liability for an ac.cident unless there was a voluntary assumption of unnecessary risk; an assumption of the risk not, of course, in the .expectation of being hurt (which would amount to self-inflicted injury), but in the expectation of encountering the danger and avoiding injury from it. This view is countenanced to some extent by the adjudications ; but the decisions turn so largely on the particular language of the policies construed that exactly apposite precedents are scarce. The cases dealing with
First. Cases like the present one in which the qualifying word “voluntary” is not found, but the exemption is for “exposure to unnecessary danger or obvious risk of injury.” Cornish v. Ins. Co., L. R. 23 Q. B. Div. 453; Tuttle v. Ins. Co., 134 Mass. 175; Cawtelle Admx. v. Assurance Co., 15 Blatch. (U. S.) 216.
Second. Those wherein the clause of the policy construed was that the insured should exercise ‘ ‘ due diligence for his safety,” or words of similar import. Stone’s Adm. v. Casualty Co., 34 N. J. Law 371; Duncan v. Mut. Acc. Assn., 13 N. Y. Supp. 620 ; Tooley v. Assurance Co., 3 Bissell (U. S.) 399; Badenfield v. Ins. Co., 154 Mass. 77.
Third. Those wherein the exemption was for wilful or wanton exposure to unnecessary danger. Schneider v. Ins. Co., 24 Wis. 28; Provident, etc. Co. v. Martin, 32 Md. 310.
Fourth. Those in which the clause invoked as exempting the company from liability provided an exemption if the insured voluntarily exposed himself to unnecessary danger. Bean v. Employers, etc. Co., 50 Mo. App. 459; Schneiderer v. Ins. Co., 58 Wis. 13; Mfg. Indemnity Co, v. Dorgan, 58 Fed. 945; Burkhard v. Ins. Co., 102 Pa. St. 262; Keene v. Ins. Co., 36 N. E. (Mass.) 890; Marx v. Ins. Co., 39 Fed. 321; Duncan v. Mut. Acc. Assn., 13 N. Y. Supp. 620; Travelers Ins. Co. v. Jones, 80 Ga. 541; Equitable Ins. Co. v. Osborn, 90 Ala. 201; Shaffer v. Ins. Co., 22 N. E. (Ill.) 589.
It is apparent that in the third and fourth classes of cases merely inadvertent negligence is excluded from the force of the exemption clause; that in the second class, where the proviso is for the exercise of diligence by the insured to secure his safety, the intention is to induce circumspection and caution and exempt the company from responsibility for accidents due to the insured’s negligence. Opinions in cases of the first class are in
Some of the precedents will be analyzed to deduce the rule they prescribe.
In Cornish v. Ins. Co., 23 Q. B. Div., supra, a farmer, while driving a wagon across a railway track, was killed by a train which he could have seen if he had been paying attention to what he was doing. The words relied on to exonerate the company were “the exposure of the insured to obvious risk of injury,” and the court of Queen’s Bench held that the clause excluded from the force of the policy two classes of accidents: First, those arising from exposure of the insured to a risk obvious to him at the time; second, those arising from a risk that would have been obvious, to him if he had attended, with reasonable care, to his surroundings. The court declared it was not prepared to say that injuries caused by the negligence of the insured were, in all cases, exempt; but only that the policy did not protect him against the consequences of a risk which would have been obvious enough if he had been paying the slightest attention to his acts. The effect of that decision is, that although the danger was not in fact known to the in
In Tuttle v. Ins. Co., 134 Mass, supra, the company was exonerated if the insured party exposed himself “to obvious or unnecessary danger,” and he was required to ‘ ‘ use all due diligence for his safety. ’ ’ He was killed while running along a railway track at night in front of a moving train for the purpose of getting on another train travelling on a parallel track. Under these circumstances the insured was held to have been guilty of exposing himself to obvious danger. The court said:
£ ‘ The conduct of the deceased was such as in the words of Mr. Justice Colt, £is condemned by the general knowledge and experience of all prudent men and is conclusive on the question of due care. ’ The danger was obvious, the exposure to it was unnecessary, the want of due diligence clear.” Again: “If a person voluntarily places himself in a position where he is exposed to an obvious danger and the precise injury happens to him which there is reason to fear, it can not fairly be held that the language of this policy was not intended and understood to be applicable to such a case.” Although in that instance the policy did not require a “voluntary” exposure to unnecessary danger, it is plain that the insured both unnecessarily and voluntarily exposed himself.
In Sawtelle’s Admx. v. Ins. Co., 15 Blatchf. supra, the decedent was killed by falling from a platform of a car at night while the train was in full motion, his fall being caused either by his riding on the platform or passing from one car to another. The language of the exempting clause was that no claim should lie against the company for death or injury “in consequence of exposure to unnecessary danger, hazard, or unnecessary venture.” The decedent was held to have been guilty of negligence within the meaning of the exemption and that there was no question for the jury. This case decides that “negligence” and “exposure to unnecessary
In Tooley v. Ins. Co., 3 Bissell 399, the policy provided that the insured should not neglect “to use due diligence for self-protection, ” and it was held that “it was his duty to use that degree of caution and diligence which a prudent man would use under the circumstances in which he was placed.”
In Keene v. Accident Co., 36 N. E. 891, the Supreme Court of Massachusetts had to deal with a policy providing against voluntary exposure to unnecessary danger and also with one that the certificate holder must use “all due diligence for his personal safety and protection.” The former proviso was held to include a voluntary but not ah involuntary exposure to unnecessary danger; that is, a conscious and intentional exposure-something the insured was conscious of and willing to take the risk of. Due diligence to be exercised by the insured was said to mean, not that he must guarantee himself against accidents, or that he could not recover for an accident to which some want of care on his part might contribute: he was not required to use all possible diligence, but all due diligence. The opinion further said that due diligence is not inconsistent with inadvertence, nor running such risks as prudent or cautious persons would run. In that case the deceased had been killed by getting off a car at a station and passing across some tracks with an umbrella hoisted só as to obstruct- his view, with the result that he was struck by some freight cars which had been shunted along one of the tracks. It was held to be a question for the jury whether he had violated the policy.
Some of the decisions based on policies stipulating against a voluntary exposure to unnecessary danger, are more radical as to the negligence necessary to
In Scheiderer v. Ins. Co., 58 Wis. supra, the exemption was for voluntary exposure to unnecessary danger and the facts were that the plaintiff, who was traveling on a train, fell asleep and while he was in a doze, not knowing or realizing what he was doing, arose from his seat, walking to the platform of the car and fell off. This act was held not to come within the exemption.
In Mfg. Indemnity Co. v. Dorgan, 58 Fed. suprar the insured, while ill, had gone on a fishing trip and was afterwards found lying in a brook face downward and dead. The court had to pass on the meaning of voluntary exposure to danger; and it was held that such an exposure was something beyond the ordinary; wanton exposure, or gross carelessness; that a less degree of negligence would not exempt the company.
In Marx v. Insurance Co., 39 Fed. 321, the insured was killed by falling from the platform of a car while the train was running. He had gone on the platform because he was suffering from overheat and nausea. The platform was said to be a dangerous place, but that it was for the jury to determine whether the circumstances considered, he unnecessarily exposed himself to danger in riding there.
Viewing the facts of the present case, so far as they are known, in the light of the foregoing authorities, some of which make a negligent exposure to danger even when the insured was ignorant that it was impending, a defense, we will endeavor to ascertain whether the argument of the defendant that the deceased was conclusively proved to have been guilty of negligence, is sound. In the first place, it is to be observed that the burden of proof was on the defendant to show the insured, Oscar Jamison, met death in a way
In Badenfeld v. Ins. Co., 154 Mass, supra, it was asserted to be an irresistible inference that the insured fell while leaving a train which was in motion. On this contention the Supreme Court of Massachusetts held, that granting the proposition to be true, it would not ■conclusively establish that the deceased was negligent; but whether or not he was negligent would depend on the circumstances under which he left the moving train; “and there would be be no presumption that the circumstances were such as to make it negligence.” Numerous cases to the same effect might be cited; but those are sufficient for the present purpose; and they establish the proposition that the circuit court could not, from the circumstances above stated, properly have drawn the conclusion, as a legal inference, that Oscar Jamison was killed while exposing himself to unnecessary danger ■or to obvious risk of injury.
What is relied on further and principally in this connection is the testimony of one of the persons who discovered the deceased the morning after he was
The testimony supposed to prove the defendant was asleep when struck by the train, was given by a witness who saw him in the morning of April 15th, after he had been injured the night before. The witness said that Jamison was then in a semiconscious condition and testified further as follows:
“I first said to him when I approached him, put my hand on his breast and said ‘what in the world is the matter?’ He opened his eyes and looked at me, but*322 didn’t speak until I repeated the question and then he said he didn’t know. I asked him then if he had been hit by the train; repeated the question before he answered it, and he said he had. I asked him then if he had fallen asleep; repeated this question before he answered it; he said ‘Tes.’ I asked him how he came to go to sleep; said he didn’t know.
“Q. Where was Jamison at the time this conversation was held with reference to the place where you found him ? A. He was lying right where I first found him.
‘ ‘ Q. Who was present when said conversation was held? A. Only he and myself.”
Prom the testimony it seems that the deceased was in such a stupor while the witness talked to him as to render it very doubtful if he understood what was-said to him or by him. When first asked what was the matter, and after the question had been reiterated, he said he did not know what was the matter; and his other rer plies may have been mechanical assents to the inquiries addressed to him. He had been in an unconscious condition for hours and died shortly afterwards, and in that state was as likely as not to give an affirmative response to a suggestive question. We think the circuit court might justly have attached little importance to the statements of the deceased as proving that he was killed while asleep on the track. Assuredly, those statements do not establish that fact so conclusively as to make it our duty to determine it contrary to the finding below.
The judgment is affirmed.
