63 S.E. 962 (W.Va. 1909), Diddle v. Continental Cas. Co.

Citation:63 S.E. 962, 65 W.Va. 170
Opinion Judge:POFFENBARGER, J. BRANNON, J.
Party Name:DIDDLE v. CONTINENTAL CASUALTY CO.
Attorney:Campbell, Heffley & Davis and Manton Maverick, for plaintiff in error. Isbell & Perry, for defendant in error.
Case Date:February 16, 1909
Court:Supreme Court of Appeals of West Virginia
 
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Page 962

63 S.E. 962 (W.Va. 1909)

65 W.Va. 170

DIDDLE

v.

CONTINENTAL CASUALTY CO.

Supreme Court of Appeals of West Virginia.

February 16, 1909

Submitted June 6, 1908.

Syllabus by the Court.

Either reckless or deliberate encountering of known danger, or danger so obvious that a reasonably prudent man would have observed and avoided it, if the circumstances were not such as necessitated the encountering thereof, is a "voluntary exposure" within the meaning of a clause in an accident insurance policy limiting the liability of the insurer in case of an injury resulting from "voluntary exposure to unnecessary danger or obvious risk of injury."

[Ed. Note.-For other cases, see Insurance, Cent. Dig. § 1180; Dec. Dig. § 461. [*]]

For other definitions, see Words and Phrases, vol. 8, pp. 7346-7350; vol. 8, p. 7830.]

Unconsciousness of the danger at the moment of injury does not excuse the insured, except in those instances in which he [65 W.Va. 171]was ignorant of the danger and under no duty, from the obviousness thereof, to know its existence.

[Ed. Note.-For other cases, see Insurance, Cent. Dig. § 1180; Dec. Dig. § 461. [*]]

If the danger is obvious, and there is nothing in the situation of the insured or the circumstances surrounding him that in any way precludes deliberation, freedom of action, or choice of conduct, such as a sudden peril, which he had no reason to expect, or the like, and he encounters it, and is injured, the exposure is "voluntary."

[Ed. Note.-For other cases, see Insurance, Cent. Dig. § 1180; Dec. Dig. § 461. [*]]

In an issue raised under such a clause, the rights of the parties are fixed and determined by the contract, not the law of negligence; but certain general principles, operative alike in controversies arising ex contractu and ex delicto, have application, and of these some are recognized in the law of negligence.

[Ed. Note.-For other cases, see Insurance, Cent. Dig. § 1180; Dec. Dig. § 461. [*]]

Penal statutes are strictly construed.

[Ed. Note.-For other cases, see Statutes, Cent. Dig. §§ 322, 323; Dec. Dig. § 241. [*]]

Section 4282, Code 1906, making it criminal for persons, not passengers or employés of railroads, to jump on or off of railway engines, cars, or trains, does not inhibit such conduct in an employé of a railroad company, whose duties are confined to work in its shops, and do not require him to go upon or about its engines, cars, or trains when in use on its tracks or yards.

[Ed. Note.-For other cases, see Railroads, Dec. Dig. § 255. [*]]

On a motion therefor a trial court should direct a verdict, when the evidence is insufficient to sustain one different from that which the court is asked to direct.

[Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 381-389; Dec. Dig. § 169. [*]]

An instruction not founded upon evidence-that is, one embodying a proposition the evidence does not tend in an appreciable degree to support-should not be given.

[Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 596-612; Dec. Dig. § 252. [*]]

In an action on a policy of insurance, in which the defense is predicated on a clause limiting liability, when the injury has resulted from voluntary exposure to unnecessary danger or obvious risk, instructions, ignoring many important facts, disclosed by the evidence, and telling the jury they may find for the defendant, if they believe the insured did certain isolated acts, which would not in themselves, under all circumstances, make out, in law, a good defense under such a clause, are properly refused.

[Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 613-623; Dec. Dig. § 253. [*]]

Error to Circuit Court, Cabell County.

[65 W.Va. 172]Action by Lydia Diddle against the Continental Casualty Company. Judgment for plaintiff, and defendant brings error. Reversed and remanded.

Campbell, Heffley & Davis and Manton Maverick, for plaintiff in error.

Isbell & Perry, for defendant in error.

POFFENBARGER, J.

Thomas D. Diddle, insured for the benefit of his wife, Lydia Diddle, in the Continental Casualty Company, for $2,000, was struck by a railway water column, while riding on a railway engine, and killed. His wife brought this action on the policy and recovered a judgment for the sum of $2,049.30. The defense was predicated on a limited liability clause in the policy, reading as follows: "Where the accident or injury results from voluntary exposure to unnecessary danger or obvious risk or injury, or from the intentional act of the insured or of any other person; *** or (2) where the accidental injury results from or is received while quarreling, fighting or violating the law: *** Then and in all cases referred to in this part 3, the amount payable shall be one-tenth of the amount which otherwise would be payable under this policy, anything in this policy to the contrary notwithstanding, and subject otherwise to all the conditions in this policy contained." Deeming this clause applicable and controlling, under the circumstances attending the death of the assured, the insurance company tendered the beneficiary $200, one-tenth of the amount of the policy, less $20 due it on account of unpaid premium, which she refused.

There is practically no controversy as to the facts. The main question is whether the court can say, as matter of law, on the admitted or established facts, the death of the insured resulted from voluntary exposure to unnecessary danger or obvious risk of injury, or occurred while he was violating law, and this is raised by exceptions, based on the giving of instructions for the plaintiff, refusal of instructions requested by the defendant, and the overruling of a motion to direct a verdict for the defendant and a motion to set aside the verdict.

The following facts are disclosed by the evidence: The insured was a car repairer in the shops of the Chesapeake & Ohio [65 W.Va. 173]Railway

Page 964

Company at Huntington. In the...

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