113 S.W. 1140 (Mo.App. 1908), Banta v. The Continental Casualty Company

Citation:113 S.W. 1140, 134 Mo.App. 222
Opinion Judge:GOODE, J.
Party Name:BANTA, Respondent, v. THE CONTINENTAL CASUALTY COMPANY, Appellant
Attorney:Edwin S. Puller and Manton Maverick for appellan; Henry H. Furth of counsel. John C. Vaughan for respondent.
Case Date:November 17, 1908
Court:Court of Appeals of Missouri

Page 1140

113 S.W. 1140 (Mo.App. 1908)

134 Mo.App. 222

BANTA, Respondent,



Court of Appeals of Missouri, St. Louis

November 17, 1908

Appeal from St. Louis City Circuit Court.--Hon. Jesse A. McDonald, Judge.

Reversed and remanded. (with directions).

Edwin S. Puller and Manton Maverick for appellan; Henry H. Furth of counsel.

(1) Insurance policies should be construed in accordance with their plain language. Anable v. Fid. & Cas. Co., 63 A. 92; Conway v. Insurance Co., 140 N.Y. 79, 83; Insurance Co. v. Vandecar, 86 F. 289; Ripley v. Insurance Co., 16 Wall. 336. (2) The policy constitutes the only relation between the parties and governs their legal rights. Lamb v. Insurance Co., 48 N.Y.S. 125; Appleby v. Insurance Co., 54 N.Y. 258; Huston v. Insurance Co., 66 Ohio St. 246; Hull v. Accident Assn., 41 Minn. 231, 234; Insurance Co. v. Randolph, 78 F. 767; Insurance Co. v. Martin, 32 Md. 312; Carr v. Insurance Co., 100 Mo.App. 602. (3) Every provision of the policy not illegal or immoral will be presumed to be material to the obligation and will be enforced. Allen v. Insurance Co., 123 N.Y. 12; Janneck v. Insurance Co., 162 N.Y. 574; Russell v. Insurance Co., 176 N.Y. 189. Conditions in accident policies that the insurance shall not extend to, nor double indemnity be paid for, injuries received while entering or leaving a car are valid and will relieve the insurer from liability if the injury is so received. Bigelow v. Insurance Co., 93 U.S. 284; Insurance Co. v. McConkey, 127 U.S. 661; Insurance Co. v. Seaver, 19 Wall. 531; Insurance Co. v. Brookover, 71 S.W. 123.

John C. Vaughan for respondent.

(1) Indemnity while insured is traveling in a car has been held to cover injuries sustained in the course of a journey, even though the insured, at the time of the injury, had actually alighted. 1 Amer. and Eng. Ency. of Law (2 Ed.), 305; Tooley v. Insurance Co., 3 Biss. 399; Northrup v. Insurance Co., 43 N.Y. 516. (2) The "injury" is sustained while actually riding as a passenger in the car, even though the ultimate injury does not occur until insured has fallen from the car to the ground. James v. Casualty Co., 113 Mo.App. 629; Insurance Co. v. Muir, 126 F. 930. (3) The exception clause (getting on or off) does not apply to an act performed to avoid an imminent impending peril unless expressly so stated in the policy. Reynolds v. Insurance Co., 1 N.Y.S. 738; Miller v. Insurance Co., 39 Minn. 548; Sawtelle v. Insurance Co., 15 Blatch. 216.


[134 Mo.App. 224] 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...

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