31 S.W. 578 (Mo. 1895), Meadows v. The Pacific Mutual Life Insurance Company of California

Citation:31 S.W. 578, 129 Mo. 76
Opinion Judge:Gantt, P. J.
Party Name:Meadows, Administrator, v. The Pacific Mutual Life Insurance Company of California, Appellant
Attorney:Dowe, Johnson & Rusk for appellant. Thomas J. Porter and Ben. J. Woodson for respondent.
Judge Panel:Gantt, P. J. Burgess and Sherwood, JJ., concur. Burgess and Sherwood, JJ., concur.
Case Date:June 04, 1895
Court:Supreme Court of Missouri
 
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Page 578

31 S.W. 578 (Mo. 1895)

129 Mo. 76

Meadows, Administrator,

v.

The Pacific Mutual Life Insurance Company of California, Appellant

Supreme Court of Missouri, Second Division

June 4, 1895

Appeal from Buchanan Circuit Court. -- Hon. Henry M. Ramey, Judge.

Affirmed.

Dowe, Johnson & Rusk for appellant.

(1) The first instruction for plaintiff should not have been given. First. It purports to cover the whole case, but fails to submit the issues to the jury. Instructions must not ignore material issues. McQuillin's Pl. and Pr., sec. 769, and cases cited. Must not ignore the evidence. Stocker v. Green, 94 Mo. 280; Maack v. Schneider, 57 Mo.App. 431; McQuillin's Pl. and Pr., sec. 770; Bertwhistle v. Woodward, 95 Mo. 113. Second. It tells the jury that, if the deceased was run over on the railroad track, plaintiff must recover, and is in this respect in direct conflict with number 4 given for defendant, which tells the jury to find for defendant if deceased was killed while being on the roadbed, and roadbed was defined in respondent's instruction number 2 as including the track. Instructions must not be inconsistent. Stone v. Hunt, 94 Mo. 475; State v. Herrell, 97 Mo. 105. The giving of conflicting instructions constitutes reversible error. Bluedorn v. Railroad, 108 Mo. 439; Stevenson v. Hancock, 72 Mo. 6; Frank v. Railroad, 57 Mo.App. 181. Third. It does not state the law under the contract, which provides that if the accident happened while the insured was on the roadbed of a railroad there should be no recovery. (2) The court erred in defining "roadbed" as in plaintiff's second instruction, and in refusing to define it as asked by defendant. Cass County v. Railroad, 25 Neb. 348; Piper v. Ass'n, 37 N.E. 759. Plaintiff's third instruction was, under the facts and circumstances in evidence in this case, erroneous and harmful. There is certainly no "absence of proof to the contrary" in this case. But the circumstances in proof bring it within the rule that the happening of the accident sometimes raises a presumption of negligence. Whitaker's Smith on Neg., p. 423, and cases cited and reviewed. Ray's Negligence of Imposed Duties, p. 688, and cases cited. And furthermore, plaintiff in this suit, being required to make out a case within the terms and conditions of the policy, the presumption that the deceased was exercising proper care does not exist. Patterson's Railway Accident Law, p. 443. Negligence and exposure to unnecessary danger are equivalent terms. Sawtelle v. Passenger Co., 15 Blatch. 216; Tuttle v. Ins. Co., 134 Mass. 175; Ins. Co. v. Jones, 80 Ga. 541; Shaffer v. Ins. Co., 22 N.E. 589; Neil v. Ins. Co., 17 Can. 44; Cook Life Ins., 82. (3) The demurrer to the evidence should have been sustained. One putting in his own evidence takes the chance of aiding plaintiff's evidence, but does not waive his right to demur to the evidence. Weber v. Railroad, 100 Mo. 194. The act of attempting to pass between the cars of a train is gross negligence. Hudson v. Railroad, 101 Mo. 13; Corcoran v. Railroad, 105 Mo. 399; Lewis v. Railroad, 38 Md. 588; O'Mara v. Railroad, 18 Hun, 192; Copeland v. Railroad, 61 Ala. 376.

Thomas J. Porter and Ben. J. Woodson for respondent.

(1) If all the instructions read together declare the law as to all the issues, the judgment will not be reversed because those given for either party alone do not present all the issues on the theory of the respective parties; and "there is no necessity for qualifying each by an express reference to the others." Owens v. Railroad, 95 Mo. 181; Mfg. Co. v. Guggemos, 98 Mo. 397. (2) If the first instruction given for plaintiff is read in connection with those given for defendant, it will be seen that there is no inconsistency, but the defendant's instructions so qualify the instruction for plaintiff as to fully present all the issues and preclude a possibility of the jury being misled. Karl v. Railroad, 55 Mo. 482; Whalen v. Railroad, 60 Mo. 323; Spillane v. Railroad, 111 Mo. 564. (3) "Roadbed," as used in the policy of insurance in suit, is properly defined in instruction 2 given for plaintiff. Railroad v. Reidmond, 11 Lea (Tenn.), 205; Monkers v. Railroad, 60 Mo. 338; Dougherty v. Railroad, 19 Mo.App. 419; Cass Co. v. Railroad, 41 N.W. 246; Mills on Eminent Domain [2 Ed.], sec. 211. (4) If the third instruction for plaintiff is objectionable it is because of the qualifying clause, "in the absence of proof to the contrary." The plaintiff would have been entitled to the instruction without qualification. Parsons v. Railroad, 4 Mo. 286; Crumply v. Railroad, 111 Mo. 158. The presumption that Meadows was at the time of his death, exercising proper care for his safety "is not overthrown by the mere fact of the injury." Buesching v. Gaslight Co., 73 Mo. 233. (5) The instruction in the nature of a demurrer to the evidence asked by defendant was properly refused. The fact that Meadows was killed by being run over by a car on a railroad track does not justify the conclusion that he was at the time voluntarily exposing himself to unnecessary danger nor "being upon the roadbed of a railroad," within the meaning of the conditions of the policy. Allen v. Willard, 57 Pa. St. 347; Badenfeld v. Acc. Ass'n, 27 N.E. 769; Anthony v. Acc. Ass'n, 38 N.E. 973. (6) Where the defense is that death was due to a cause excepted from the operation of the policy the burden is on the defendant. Cook Life Insurance, sec. 44; Ass'n v. Sargent, 142 U.S. 691; Goldschmidt v. Ins. Co., 102 N.Y. 486; Freeman v. Insurance Co., 144 Mass. 572; Anthony v. Ass'n, supra. (7) Whether death was caused by voluntary exposure to danger is a question for the jury. Cotton v. Fidelity, etc., 41 F. 506. Forfeitures are strictly construed against the company and in favor of the assured. Cotton v. Fidelity, etc., supra; Dougherty v. Ins. Co., 25 A. 740.

Gantt, P. J. Burgess and Sherwood, JJ., concur.

OPINION

[129 Mo. 80] Gantt, P. J.

This is an action on an accident insurance policy by the administrator of the assured, Daniel A. Meadows, deceased, for $ 5,000. The petition contains the usual averments, and alleges that said Daniel A.

Page 579

Meadows lost his life on or about July 30, 1892, by being "accidentally run upon and over by a car or train of cars, on the track of the Hannibal & St. Joseph Railroad Company, at the city of Chillicothe, in the state of Missouri," and prayed judgment for the sum assured.

The answer is a general denial and a plea of the following conditions in the policy, to wit:

"The claimant shall establish affirmatively under any claim or proceeding thereunder, that the injury or death resulted from actual accident according to the policy." And, further: "The insured agrees to use due diligence for personal safety and protection; and this insurance does not cover, and the company will not be liable for, injury nor death while engaged in, caused by, resulting from, or attributable partially or wholly to any of the following causes: Voluntary exposure to unnecessary danger or perilous venture, violating law or the rules of any company or corporation, intentional injuries inflicted by the insured or any other person, or entering or trying to enter or [129 Mo. 81] leave any moving conveyance propelled by steam power, or riding in or upon any such conveyance not provided for the transportation of passengers or being upon a railroad bridge, trestle, or roadbed."

The answer pleaded that the deceased was acting in violation of said conditions at the time of the accident, and that his death occurred by reason of such violation, and by reason of voluntary exposure to unnecessary danger, and by reason of being upon the roadbed of the Hannibal & St. Joseph railroad at Chillicothe, Missouri.

The policy contained the conditions pleaded in the answer, and a great number of other conditions exempting the company from liability for accidents of almost every conceivable character. Indeed, it is somewhat difficult to name an accident, as society is now constituted, for which defendant would be liable, if a strict technical construction is indulged as to each of these conditions. The sixth clause of the conditions indorsed upon the policy is as follows:

"6. This insurance does not cover, and the company will not be liable for disappearances, nor injury (nor death resulting from the same) of which there is no visible mark upon the body of the insured, the body itself, in case of death, not being considered such mark produced at the time of and by the accident; nor injury nor death, while engaged in, caused by, resulting from, or attributable partially or wholly to any of the following causes: Disease or bodily infirmity, or act committed by the insured while under mental aberration produced by disease or bodily infirmity, fits, vertigo, hernia, sleep walking, intoxication, use of narcotics or anesthetics, medical or surgical treatment (amputation rendered necessary by the injury and made within ninety days excepted), sunstroke, freezing, taking of poison, contact with poisonous substances, [129 Mo. 82] inhalation of gas or vapor (voluntary or...

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