137 N.E. 575 (Ind.App. 1922), 11,365, Continental Casualty Company v. Whitmore

Docket Nº:11,365
Citation:137 N.E. 575, 79 Ind.App. 157
Opinion Judge:BATMAN, J.
Attorney:Bomberger, Peters & Morthland, for appellant. Fred Barnett, for appellee.
Case Date:December 19, 1922
Court:Court of Appeals of Indiana

Page 575

137 N.E. 575 (Ind.App. 1922)

79 Ind.App. 157




No. 11,365

Court of Appeals of Indiana

December 19, 1922

From Lake Superior Court; Virgil S. Reiter, Judge.

Action by Clara Rhodes Whitmore against the Continental Casualty Company. From a judgment for plaintiff, the defendant appeals.


Bomberger, Peters & Morthland, for appellant.

Fred Barnett, for appellee.


[79 Ind.App. 158] BATMAN, J.

In this action appellee recovered a judgment against appellant on a policy of insurance, issued by the latter to Roy Rhodes, and in which the former was named as the beneficiary, in the event the insured lost his life by accident or sickness, within the conditions of the policy, while the same was in force. The complaint is in a single paragraph, and discloses that the policy contains, among others, the following provision: "This policy does not cover any loss caused by or resulting in whole or in part from * * * injury sustained by the insured by reason of voluntary exposure to unnecessary danger," etc.

Page 576

Appellant's answer [79 Ind.App. 159] consists of two paragraphs. The first is a general denial, and the second is an affirmative paragraph, based on the provision of the policy quoted, to which a reply in denial was filed. The cause was submitted to a jury for trial, which resulted in a verdict and judgment in favor of appellee. Appellant filed a motion for a new trial, which was overruled, and this action of the court constitutes the only error assigned on appeal.

Appellant contends that the court erred in refusing to give instructions Nos. 1, 8 and 9 requested by it. There was no error in refusing to give instruction No. 1, as certain language used therein would tend to lead the jury to believe that the fact that the decedent met his death while riding upon a freight car, without lawful authority from any agent of the company operating the same, if it so found, might be taken as a controlling factor in determining appellant's liability. Instruction No. 8 was properly refused, as it omits the essential element of knowledge on the part of decedent concerning the dangers naturally resulting from riding on top of a freight train in motion.

Said instruction No. 9 is as follows: "If you find from the evidence that the act of the decedent in voluntarily riding on the top of a moving freight train would be considered by ordinarily prudent persons, as a dangerous thing, and that the said Roy Rhodes, knew, or by the exercise of due care, could have known, that such act was dangerous, and that said Roy Rhodes rode on the top of such train, for no necessary purpose, but only for the purpose of pleasure or sport, then I instruct you that he, the said Roy Rhodes, voluntarily exposed himself to unnecessary danger, and the plaintiff herein cannot recover." (Our italics.) It will be observed that said instruction would have informed the jury, in effect, that appellee could not recover if it found, among other things, "that the act of...

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