Banta v. Continental Casualty Co.

• Citation: 113 S.W. 1140,134 Mo. App. 222
• Parties: BANTA v. CONTINENTAL CASUALTY CO.
• Decision Date: 17 November 1908
• Court: Court of Appeal of Missouri (US)

113 S.W. 1140

134 Mo. App. 222

BANTA v. CONTINENTAL CASUALTY CO.

St. Louis Court of Appeals. Missouri.

November 17, 1908.

Rehearing Denied December 1, 1908.

1. INSURANCE (§ 450) — ACCIDENT INSURANCE — LIABILITY — CONTRIBUTORY NEGLIGENCE OF INSURED.

The rule which will not permit one to be charged with contributory negligence when injured in an effort to escape sudden peril does not apply in determining liability under an accident policy for injuries to insured in jumping from a street car in danger of collision with a vehicle.

2. INSURANCE (§ 146) — ACCIDENT INSURANCE — CONTRACT — CONSTRUCTION.

An accident policy should be interpreted so as to extend its protection over as wide a field of accidental injury as is consistent with its language, but its natural meaning must not be violated.

3. INSURANCE (§ 146) — CONTRACT — CONSTRUCTION.

Where the effect of an insurance contract is clear, it will be enforced as written; but where its terms are of doubtful meaning, they will be construed most strongly against insurer.

4. INSURANCE (§ 452) — ACCIDENT INSURANCE — CONTRACT — CONSTRUCTION.

An accident policy providing for double indemnity where an injury is sustained while insured is on any car as a passenger, and stipulating that double liability shall not be payable for injuries sustained while getting on or off any car, does not impose double liability for injuries sustained by insured while jumping from a trolley car in imminent danger of collision with a vehicle.

5. INSURANCE (§ 146) — CONTRACT — CONSTRUCTION.

All accident insurance risks are taken by insurers on the theory that human nature will prompt a person to do all he can in crises to avoid injury, and that insurer will get the benefit of this instinct of self-preservation.

Appeal from St. Louis Circuit Court; Jesse A. McDonald, Judge.

Action by Albert J. Banta against the Continental Casualty Company. From a judgment for plaintiff, defendant appeals. Reversed with directions.

Edwin S. Puller, for appellant. John C. Vaughan, for respondent.

GOODE, J.

Respondent, while insured by appellant against accidents, fractured his leg in a leap from a trolley car on a cross-country line in Illinois. A collision appeared to be imminent between the car and a threshing machine drawn by a traction engine along a highway which intersected the railway, and in his alarm respondent, who was seated inside the car, went to the platform and jumped off. A collision of slight violence occurred, and the passengers who remained in the car were unharmed; in fact, no one was hurt but respondent, though the conductor, motorman, and some other passengers on the car likewise jumped off. The tibia of respondent's leg was broken by the force with which he struck the ground. The policy describes certain accidental injuries which, if sustained by the insured, might cause a total loss of time, for which the company would indemnify at the rate of $25 a week; and further provided as follows:

"Part III. Double Indemnity.

"If injury as before described is sustained while the insured is (1) riding as a passenger and is in or upon any railway passenger car using steam, cable or electricity as a motive power, or (2) a passenger on board a steam vessel licensed for the regular transportation of passengers, or (3) a passenger in an elevator provided for passenger service only, or (4) in a burning building, as owner, guest or tenant, the company will pay double the indemnity otherwise payable under parts I or II of this policy.

"Double indemnity (part III) shall not be payable for any loss resulting from injury sustained while getting on or off, or being on the step or steps of any railway or street railway car."

Respondent was disabled for more than 18 weeks, and appellant offered him single indemnity for the period of the disability, but he demanded double indemnity, contending he was entitled to it under the paragraph of the contract we have quoted. The company contends he was only entitled to single indemnity, because his hurt was received while he was not riding as a passenger in or on the car, but while he was getting off. It being agreed respondent was injured as the result of his leap from the car, induced by a perilous situation, the court below held he was in or on the car in the meaning of the policy when hurt and, further, that the accident did not come within the exception provided in the paragraph for double indemnity, to wit, if an injury happened while the insured was getting off or on or was on the steps of a car. Clearly respondent was not either actually in or upon the car in a physical sense when he was hurt. He had left the car in a leap he considered necessary to escape harm, and broke his leg when he struck the ground. Clearly, too, the injury was sustained while he was getting off the car, or, rather, after he was off. The argument is that, in framing the contract for insurance with those provisos, the parties did not intend to excuse the company from liability for a hurt inflicted in leaving a car to escape violent injury or death, but only to excuse it if the insured was hurt when he was not riding as a passenger and securely in or upon a car. An attempt is made to bring this case within the rule of law which will not permit a plaintiff to be charged with contributory negligence when he hurts himself in an effort to escape sudden peril; but that principle has no application, because contract law must control the decision, not the law...