37 Pa. Super. 299 | Pa. Super. Ct. | 1908
Opinion by
The insured, for whose death under a policy issued by the defendant, recovery was sought in this case, was found between tracks Nos. 3 and No. 4 of the Pennsylvania railroad near and east of the Wilkinsburg passenger station, with his left foot severed from the body, which was some distance beyond the foot, covered with snow. When taken to the hospital, he was suffering from “a compound fracture of the frontal bone on the left side and left leg crushed off, and was suffering from severe shock.” Counsel for the defendant admitted “that the cause of his death was violent and external.”
The case was submitted for trial by the court, without a jury, under the provisions of the Act of assembly of April 22, 1874, P. L. 109. Under the terms of admission, it was agreed: “That the notes of testimony heretofore taken on October 22, 1906, at the former trial of the above-entitled case, shall be the testimony offered in behalf of the plaintiff, together with the policy and classification of exposures and occupations referred to in the testimony as exhibit 1.” In addition to the testimony, these facts were agreed upon: “George Price was employed by the Pennsylvania Railroad Company as shifting conductor, with duties at the Union Station in the City of Pittsburg, Pa. His home was in Wilkinsburg, Pa. On the night of December 25, 1903, he worked during the night as usual. A train left the Union Station at Pittsburg on the Pennsylvania railroad for Wilkinsburg shortly after Price stopped working at the Union Station on the morning of . the 26th of December, 1903. This train stopped a short distance west of Wilkinsburg. Shortly after this, an east-bound train passed the point on another track. Shortly thereafter, George Price was found by Walter W. Smith, as testified to in the former trial.
“ Counsel agree that the court shall draw all inferences from the testimony and these facts which a jury might draw.
“ Counsel further agree that the court shall decide the case on two questions:
“1. Is there sufficient evidence from which a jury could find a verdict for plaintiff? If the court so finds for the plaintiff, then
*302 “2. Under the policy and classification of exposures and occupations, what is the amount of damages?”
The court found for the plaintiff, fixing the damages at $1,000, the amount payable under the policy to the insured, in class A, which with interest constitutes the amount of the judgment.
There is a single assignment of error:
“The court erred in entering the following order: And now November 30, 1907, it is hereby ordered that judgment be entered for plaintiff for the sum of $1,210 and costs.”
It is assumed in the argument of the appellant, and also of the appellee, that this assignment of error covers both branches of the case.
The appellant directs his argument to the proposition that there was not sufficient evidence from which a jury could find a verdict for plaintiff as well as that the amount of the judgment was in excess of what could be legally recovered under the classification in the policy.
Under the testimony and the admissions, it is clear that the deceased, for whose death recovery is sought under the policy, met his death from “the effects of bodily injury caused solely by external, violent and accidental means,” in which event the policy provides, “ Or, if death shall result to the insured from such injuries alone within thirty days from the happening thereof, the Society will pay the sum of $1,000.00 to Elizabeth Price, wife, if surviving, or in the event of her prior death, to the legal representatives of the insured. Except, that if the insured shall be fatally, or otherwise injured, while temporarily or otherwise engaged in doing any act or thing pertaining to any occupation or exposure rated or classified as more hazardous than Preferred or Class A, and not herein specifically mentioned as not being covered, the insurance, weekly indemnity or specific indemnity shall be only for such sum as the premium paid will purchase at the rate fixed by said Society for such increased hazard, in accordance with the Classification of Occupations and Exposures of the Society in use at the time of the injury, as per the table printed hereon.”
It is admitted that the deceased, who was a passenger shifting conductor, discharging his duties at night, had stopped his
Could a recovery be lawfully had under the facts as admitted and proved, and such as can naturally be inferred from all the circumstances of the case?
The policy expressly provides that, “This insurance shall not extend to or cover disappearance .... nor death or disability when caused .... either directly or indirectly, wholly or in part, from any of the following acts, causes or conditions, or while so engaged or affected, viz.: .... either voluntary or unnecessary exposure to danger or to obvious risk of injury .... while violating the law.”
Among the conditions attached to the policy, it is provided, that, “This policy will be in. force only for the term mentioned in the last renewal receipt signed by the Secretary.” The appellant alleges that there is no sufficient evidence of the payment of the quarterly premium which continued the policy in force covering the time when the accident occurred, but the testimony of the plaintiff and of her brother, who forwarded the premium, clearly establishes the fact that the premium was paid on or about November 17th, continuing the policy in force for three months thereafter.
The right to recover, therefore, depends upon whether or not the defendant was, at the time of the accident, doing an unlawful act, or was voluntarily and unnecessarily exposing himself to danger or to obvious risk of injury.
As to the burden of proof, see Dougherty v. Pacific Mut. Life Ins. Co., 154 Pa. 385. “Under a policy insuring against death from such violent and accidental injuries as shall externally be visible on the body, and which alone cause death, evidence that the insured was found dead and mangled on a railroad track, establishes a prima facie case, and casts the burden of proof upon the insurer to show that death resulted from a violation of some of the conditions in the policy specially pleaded in defense : ” Meadows v. Pacific Mut. Life Ins. Co., 50 Am. St. Rep. 427 (129 Mo. 76). In a note to this case, on page 441, after reciting what constitutes a prima.facie case: “To prevent such recovery, the burden of proof is upon the insurer to show that the death arose from one of the excepted causes enumerated in the policy:” Anthony v. Mercantile Mut. Accident Assn., 162 Mass.
The appellant insists that the place at which the body was discovered clearly indicates that the deceased was a trespasser upon the railroad and, as such, was committing an unlawful act, and that the plaintiff is thereby necessarily prevented from recovering, under the terms of the policy. It does not necessarily follow that, because the body of the deceased was found some distance east of the railway station and of the regular crossing, that he was, therefore, a trespasser. It is unnecessary, therefore, for us to determine, as a matter of law, the question as to whether or not, his body being upon the right of way of the railroad when found, the insured was engaged in such an unlawful act as is contemplated in the exception in the policy which prevents recovery. As we view the case, therefore, the court below was justified in finding, under the testimony, the facts agreed upon in the submission of the case and the admission of the defendant, “That the cause of death was violent and external,”, that there was “sufficient evidence from which a
Judgment affirmed.