47 N.E. 544 (Ohio 1897), U.S. Mut. Accident Ass'n v. Hubbell

Citation:47 N.E. 544, 56 Ohio St. 516
Opinion Judge:SPEAR, J. (after stating the facts).
Attorney:Follett & Kelley and Milton Sater, for plaintiff in error. Ramsay, Maxwell & Remsay, for defendant in error.
Case Date:June 08, 1897
Court:Supreme Court of Ohio

Page 544

47 N.E. 544 (Ohio 1897)

56 Ohio St. 516




Supreme Court of Ohio.

June 8, 1897

Error to circuit court, Hamilton county.

Action by Keith M. Hubbell against the United States Mutual Accident Association. Judgment for plaintiff. Defendant brings error. Affirmed.

The action of the plaintiff below (defendant in error here), commenced in the superior court of Cincinnati, was upon two policies of accident insurance, for $5,000 each, issued by the association on the life of her husband, Wakeman Hubbell, whose death was alleged to have been caused by accidental drowning. The answer set up that a condition of each of the policies was that the ‘contract shall not extend to or cover voluntary exposure to unnecessary danger,’ and ‘that the said Wakeman Hubbell met his death, solely in consequence of voluntary exposure to unnecessary danger, on or about the 28th day of December, 1892, while attempting to cross a slough caused by backwater from the Tombigbee river, near Vienna, in the state of Alabama; that the said Wakeman Hubbell well knew the dangerous condition of said slough, and was warned of said danger by others, but persisted, notwithstanding such warnings and known danger, in an effort to make such crossing, and in such effort lost his life by drowning. That this defendant denies that such drowning was accidental, or due to any cause whatever other than such voluntary exposure to unnecessary danger.’ The reply denied the new matter. In the charge to the jury, the judge, after stating the issues, at request of plaintiff, gave the following instructions: ‘(1) It is not disputed that the policies set forth in the petition were duly issued, and were in force at the date of the death of Mr. Hubbell. If, therefore, you find that he died by drowning at the time and place named in the petition, and that his death was accidental, and that the plaintiff was his wife, the plaintiff is entitled to recover the insurance, unless you should find that Mr. Hubbell voluntarily exposed himself to unnecessary danger. (2) If the jury find that Mr. Hubbell was familiar with the ford at and before the date on which he lost his life, and that he judged from the appearance of the slough and the landmarks thereabout, and from such information as he had, that there was no danger to his life in crossing, and, in the exercise of his judgment, in good faith, though erroneous, undertook to cross, and lost his life thereby, the plaintiff will be entitled to recover. (3) Even if the jury should find that Mr. Hubbell had been warned by some person or persons that the ford was dangerous, he would not be bound by such warning, but was entitled to act upon the opinion of others, and upon his own knowledge and experience of the ford, if you find that he had such knowledge and experience.’ And at the request of defendant, the following: ‘(1) If the jury find that Mr. Hubbell, being aware of the danger to his life, attempted to cross the ford, it cannot be said that it was a necessity that he should cross at that time; and if, therefore, he voluntarily exposed himself to a known danger, the danger was, within the meaning of the policy, unnecessary. (2) If the jury find that there was another road to Vienna, and it was not necessary for Mr. Hubbell to cross the slough to reach Vienna, then it was unnecessary for him to expose himself to the danger of fording it. (3) The jury must find from the evidence that Wakeman Hubbell was accidentally drowned, or the plaintiff cannot recover. (4) The burden of proof is on the plaintiff to show affirmatively that Wakeman Hubbell was accidentally drowned as alleged in the complaint, and, without such affirmative proof, plaintiff cannot recover. (5) The words ‘voluntary exposure to unnecessary danger’ mean an exposure willingly undertaken of a hazard which necessity does not require,' Exception was entered by defendant to each of the propositions given for plaintiff. A verdict for plaintiff having been returned, and judgment thereon rendered, which was affirmed by the circuit court, the association prosecutes error here to obtain a reversal of those judgments.

Where a traveling salesman, who holds an accident policy issued to him as such salesman, is confronted, while in pursuit of his business, with possible danger because of a slough in a public road on his regular line of travel, over which he has passed twice a year for 13 years, and makes inquiry of other men living in the vicinity as to the existence of danger at the time, and receives opinions, some expressing fears of danger, and others to the contrary, and acting on his own judgment, formed from such opinions and from his previous knowledge, and from...

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