Pacific Mut. Life Ins. Co. v. Snowden, 242.

• Decision Date: 02 October 1893
• Docket Number: 242.
• Parties: PACIFIC MUT. LIFE INS. CO. v. SNOWDEN.
• Court: U.S. Court of Appeals — Eighth Circuit

58 F. 342

PACIFIC MUT. LIFE INS. CO. v. SNOWDEN.

No. 242.

United States Court of Appeals, Eighth Circuit.

October 2, 1893

Statement by CALDWELL, Circuit Judge:

On the 19th day of June, 1889, Andrew J. Snowden, the plaintiff, who was then engaged in the business of buying, shipping, and selling cattle, made application to the defendant, the Pacific Mutual Life Insurance Company, through its agent at Grand Island, Neb., for an accident policy of insurance for the sum of $10,000, to run 90 days. A policy in the usual form was issued, and the plaintiff paid the premium of $50. By the terms of the policy, if the assured suffered the loss of a hand, one-third of the principal sum of the policy was to be paid him. On the 15th day of September, 1889, the plaintiff, in the prosecution of his business as a cattle dealer, shipped at Cushing, Neb., to Chicago, by the way of South Omaha, over the Burlington & Missouri River Railroad several car loads of cattle, and took passage himself, by the same train, for the purpose of looking after and caring for his cattle during the transit. The plaintiff's cattle were in cars near the head of the train, which consisted of 39 cars. The caboose in which he rode was the last car in the train. At Seward, Neb., the train stopped about 12 o'clock, midnight, to take water; and, being told by the conductor that he would have time to look after his cattle the plaintiff got out of the caboose with his prod pole, and proceeded to within three or four cars of the engine, where he found one of his steers down, and immediately set about getting him up, in the customary method. Before he had completed his work, the engineer sounded the signal, 'off brakes,' and realizing that he was so far from the caboose that, before he could get to it, the train would be under such headway that he could not get on, he started to climb up on the iron ladder attached to such cars for the use of the train crew, stock men, and others having the right and occasion to use it, intending to climb to the top of the car and remain there until the next station was reached. But just as he was in the act of reaching the top of the car, and was still holding on to the iron ladder, a 'helping engine' at the rear of the train pushed the cars with such suddenness and force as to break the plaintiff's hold upon the ladder; and he was thrown down between the cars, and his left hand cut off, or so mangled that it had to be amputated.

The answer contained a general denial, and set up, as special defenses: First. That the plaintiff did not use due diligence for his personal safety and protection. Second. That his injury resulted from, or was attributable to, the plaintiff's voluntary exposure to unnecessary danger. Third. That he violated the rules of the railroad company in getting on the cattle car while it was in motion, which avoided the policy. And, fourth, that the defendant has a classification of occupations, in which they are variously classed as 'preferred,' 'ordinary,' 'medium,' 'special,' 'hazardous,' 'extra hazardous,' 'special hazardous,' and so on, and that the rate of insurance and the amount of the policy, under the rules of the company, is determined by the classification of the applicant's occupation, and that the plaintiff, in his application for insurance, made this statement: 'My occupations are fully described as follows: Cattle dealer or broker, not tender or drover, not on farm or ranch,'--and that he also stated that: '(6) The class or risk under my application is preferred.' That by the terms of the policy these statements were made warranties, and that they were false, in this: that the defendant's classifications of persons engaged in shipping or dealing in cattle was as follows:

'Classification.

Occupation. Class.

Cattle shipper and tender, in transit ................................ Ex. haz.

Cattle dealer or broker .................................................. Med.

Cattle dealer or broker, visiting yards .................................. Med.

Cattle dealer or broker, not tender or drover, not on farm or ranch .... Pref.'

-- That the plaintiff had described his occupation in his application as 'Cattle dealer or broker, not tender or drover, not on farm or ranch,' and the class of risk as 'preferred,' when he should have described his occupation as 'Cattle shipper and tender, in transit,' and the risk as 'extra hazardous.'

There was a trial before a jury, and a verdict and judgment for the plaintiff for $3,058.73, and the defendant sued out this writ of error.

Charles O. Whedon, for plaintiff in error.

H. M. Sinclair, for defendant in error.

Before CALDWELL and SANBORN, Circuit Judges, and THAYER, District Judge.

CALDWELL Circuit Judge, after stating the facts as above, .

The defendant had a traveling and local agent in Nebraska. Some time before the plaintiff took out the policy in suit, he obtained from one of these agents an accident policy for $5,000. The application for that policy and the policy were identical in terms with the application and policy in this case, save in amount. When the first policy was taken out, the defendant's agent Davis testified that the plaintiff asked the question----

'Whether, under that contract, he would be insured if he should go with his cattle to the market, and I told him he would be insured under the contract, as I understood it; that he went along just occasionally, like I sometimes do. That he was insured as he was doing business. That if he changed his occupation, however, under the contract, it would be pro rata.'

In answer to a question whether the witness told the plaintiff that he had a right to go with his own cattle to market, he answered:

'Yes, sir; of course, cattle shippers--That is their business, all the time, to be on the road with cattle, and occasionally a cattle dealer or broker goes to the yard. The policy allows traveling by any usual means of conveyance, and I called his attention to that; and I said, 'Certainly;' that he would be insured under that contract. He said that he generally had a shipper, but sometimes, occasionally, he went himself with the cattle,--may be, a dozen times a year; and I knew that was so, without him telling me, because I had been on the road many times with cattle previous to that. And he said, if that did not cover that, he would rather pay more, and be sure to have the policy that did cover it; and I held that covered the case, and I told him that covered the case.'

Both agents were present when the policy in suit was applied for...