54 N.W. 453 (Iowa 1893), Sutherland v. Standard Life & Acc. Ins. Co.

Citation:54 N.W. 453, 87 Iowa 505
Opinion Judge:GRANGER, J.
Party Name:ELIZA SUTHERLAND, Appellee, v. STANDARD LIFE AND ACCIDENT INSURANCE COMPANY, Appellant
Attorney:Ambrose & Duffie and E. E. Aylesworth, for appellant. S. B. Snyder and J. J. Stewart, for appellee.
Case Date:January 31, 1893
Court:Supreme Court of Iowa
 
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Page 453

54 N.W. 453 (Iowa 1893)

87 Iowa 505

ELIZA SUTHERLAND, Appellee,

v.

STANDARD LIFE AND ACCIDENT INSURANCE COMPANY, Appellant

Supreme Court of Iowa, Des Moines

January 31, 1893

Appeal from Superior Court of Council Bluffs.--J. E. F. MCGEE, Judge.

ACTION on an accident insurance policy. Judgment for the plaintiff, and the defendant appealed.

Affirmed.

Ambrose & Duffie and E. E. Aylesworth, for appellant.

S. B. Snyder and J. J. Stewart, for appellee.

OPINION

Page 454

[87 Iowa 506] GRANGER, J.

The plaintiff is the beneficiary of an accident policy issued by the defendant company to one Richard Miller. In November, 1889, Miller was killed while traveling on the electric motor between Omaha and Council Bluffs. The insurance was "against the effect of injury to the body caused by external violent and accidental means within the meaning of this policy, its agreements and conditions printed herein or on the back hereof." The following are some of the conditions of the policy: "This insurance does not cover disappearance; nor any injury happening to the insured when in a condition of insanity; nor any injury, fatal or otherwise, of which there is no visible mark upon the body; nor death or disablement happening to the insured while intoxicated, or in consequence of his having been under the influence of any narcotic or any intoxicating drink whatever." "Suicide or self-inflicted injury, whether felonious or otherwise, and whether the insured be sane or insane; dueling; fighting; wrestling; unnecessary lifting; racing; gymnastic sports (unless solely for recreation); voluntary over-exertion; unnecessary exposure to danger, unless in an effort to save a human life." "It is an express condition of this policy that the insured shall at all times use care and diligence for his personal safety and protection."

An averment of the petition is "that on the ninth day of November, 1889, the said Richard Miller was [87 Iowa 507] run over by an electric street-car train, and thereby received external and violent injuries, which injuries within a few hours after the happening thereof, caused his death. The answer contains the following defensive allegations: "Second. That in violation of the rules of said company, and against the protest of its employees having said train in charge, the said Richard Miller persisted in riding on the rear platform of the front car of said motor train, and in climbing on and off the guards around the same. While said Miller was so upon the train he did not use due care and diligence for his personal safety and protection, and that said alleged accident was caused by his want of care and diligence for his personal safety. Third. That at the time of said alleged injury and accident the said Richard Miller was intoxicated. Fourth. That at the time of the said alleged accident and injury the said Richard Miller was under the influence of intoxicating drinks, and that said alleged accident and injury was in consequence thereof. Wherefore the defendant demands judgment for costs."

I. The plaintiff, to establish the fact that the death of Miller was accidental within the meaning of the policy, made no proofs to show that he was not negligent, or to negative the claim that he was intoxicated; and at the close of the plaintiff's direct evidence the appellant...

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