Archibald v. Order of United Commercial Travelers

• Decision Date: 04 November 1918
• Citation: 104 A. 792
• Parties: ARCHIBALD v. ORDER OF UNITED COMMERCIAL TRAVELERS.
• Court: Maine Supreme Court

104 A. 792

ARCHIBALD

v. ORDER OF UNITED COMMERCIAL TRAVELERS.

Supreme Judicial Court of Maine.

Nov. 4, 1918.

[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Voluntary Exposure.]

Exceptions from Supreme Judicial Court, Androscoggin County, at Law.

Action by Lucetta W. Archibald against the Order of United Commercial Travelers. Verdict for plaintiff, and defendant excepts. Exceptions sustained.

Argued before CORNISH, C. J., and SPEAR, HANSON, PHILBROOK, DUNN, and MORRILL, JJ.

McGillicuddy & Morey, of Lewiston, for plaintiff.

George C. Wing and George O. Wing, Jr., both of Auburn, and John A. Millener, of Columbus, Ohio, for defendant.

CORNISH, C. J. On January 2, 1914, the defendant issued to the plaintiff's husband, Ernest U. Archibald, a certificate of insurance in the sum of $6,300, payable to the plaintiff as beneficiary in case of death occasioned by bodily injury effected through external, violent, and accidental means; subject, however, to certain provisions, conditions and requirements contained in the constitution of the order. On January 31, 1914, Mr. Archibald was struck and killed by a locomotive while walking on the tracks of the Maine Central Railroad Company in the city of Lewiston. This suit was brought to recover the amount due under the certificate, and, after a verdict for the plaintiff, is now before this court on defendant's exceptions. A large number of exceptions was reserved; but it is necessary to consider only one, the refusal of the presiding justice to direct a verdict for the defendant. We think this direction should have been given.

The constitution of the defendant order contains many exemptions. Among others, it is provided that the benefits under the certificate shall not cover any death, disability, or loss resulting from "self-destruction (while sane or insane)," "the violation of any law," "or from voluntary exposure to danger." Each of these defenses is set up by the defendant, and in this class of cases the burden is on the defendant to prove the existence of facts which create the exemption.

In ordinary actions for personal injuries, the burden is upon the plaintiff to prove his due care; but, in an action upon the contract of insurance, it devolves upon the defendant to prove the exemption which it sets up in defense. Keene v. New Eng. Acc. Ass'n, 161 Mass. 149, 36 N. E. 891; Garcelon v. Commercial Travelers' Ass'n, 195 Mass. 531, 81 N. E. 201, 10 L. R. A. (N. S.) 961.

The defense of suicide was not made out. No such inference could reasonably he drawn from the facts and circumstances as disclosed by the evidence.

The defense of violation of law is based upon R. S. c. 57, § 67, which provides as follows:

"Whoever without right, stands or walks on a railroad track or bridge, or passes over such bridge except by railroad conveyance, forfeits not less than five, nor more than twenty dollars, to be recovered by complaint."

We will not discuss the application of this statute to the claimed exemption further than we may do so incidentally in connection with the next ground. The third defense, based on "voluntary exposure to danger," is abundantly proved, and is a full and complete bar to the maintenance of this action.

The material facts are not in controversy. Mr. Archibald and his wife were residents of Poland. On the day of the accident they had come to Lewiston from Portland, arriving in Lewiston shortly before noon. They transacted some business at the Lewiston Trust Company, dined together at a restaurant, and then separated; Archibald going to an employment agency for the purpose of securing men for his lumbering operations. These were obtained, and, according to the testimony of the agent, Archibald left the agency stating that he had a little business down street, and would return about quarter past one, in season to take the men up to the 1:45 p. m. train for Rumford. He was next seen by the gate tender at the Chestnut street crossing as he was passing that crossing on the tracks, shortly before the accident, and then by the engineer and fireman of the regular 12:40 train out of the Lewiston Lower Station on its way to Brunswick. The train had reached a point several hundred feet from the station and between the Avon and Androscoggin Mills, when the engineer and fireman saw Archibald walking in the same direction in which the train was moving and beside the track. When the engine was within about 35 feet from him, Archibald, without looking back, started to run across the track, took two or three steps between the rails, threw up his hands, fell, and was caught by the pilot. Evidently he was not aware of the approaching train until that moment, and then in his confusion, or perhaps with the thought of crossing to a safer position, he was struck and killed. Such, in brief, are the circumstances attending the accident.

This brings us to the interpretation of the clause "voluntary exposure to danger." What is its meaning as used in this contract of indemnity? A definition so accurate in detail and yet so comprehensive in scope as to meet all cases it is difficult, if not impossible, to formulate, and yet the essential elements can be stated.

The term is not synonymous with lack of due care or contributory...