Diddle v. Continental Cas. Co.

• Citation: 63 S.E. 962,65 W.Va. 170
• Parties: DIDDLE v. CONTINENTAL CASUALTY CO.
• Decision Date: 16 February 1909
• Court: Supreme Court of West Virginia

63 S.E. 962

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 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.

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 Railway Company at Huntington. In the evening of the day he was killed, after the completion of his work, he came out of the shop, walked down the railway track in a westerly direction a short distance, passing the water column, standing midway between two railway tracks, about nine feet apart, and stepped on one of two engines drawing a train of cars over a switch from the westbound track to the east-bound track, as he had often done before. Instead of getting into the cab of the engine, he stood on a step on the outside, holding to a handgrip, while his body projected or swung from the side of it, and was riding in that way, or he was in the act of climbing into the cab, and before he had accomplished it, when the engine came to the water column and his body came into violent contact with it. Lest inaccuracy, frequently incident to attempted generalization, may have crept into the preceding sentence, we quote the testimony, detailing the circumstances of the accident. W. F. Adkins, a workman in the shop, said: "Well, the first place that I saw Mr. Diddle, or, they told me afterwards it was Mr. Diddle-I did not know the gentleman at the time-he was between the north, no, the west, bound track and the east bound track of the Chesapeake & Ohio, this side, that is, on the south side of the Huntington shops. He got on the engine, double-head, as we say. I suppose you gentlemen know what is meant by double-head, running two engines together. Well he got on the first engine and was climbing upon the tank, between the engine and the tank, and the water column with the water, where the engines take on water, struck him in the back of the head and knocked him off, struck him and he rolled just past the post and fell, and the main rod of the second engine crushed his head against the ground, which caused his death." On cross-examination he said the deceased had boarded the engine about 60 feet from the water column. He had put one foot on the first step and raised the other to place it on the next one. He was looking back, supposedly to see other men climb on. When struck, he had had time enough, in the opinion of the witness, to have gotten into the cab if he had not stopped to look back. He was holding to the hanger on the tender and leaning out so that the water column, 20 or 24 inches from the engine, struck him. Charles R. Wilson, chief clerk at the railway shops, said: "Well, the shop whistle had blown, and about 5:40 I was coming out of the gate, preparatory to catching a street car to come home. There was a train, a freight train, coming along, a double-header, and I stopped to permit it to pass. Looking down the track, I saw a man lying on the ground, just as if he had fallen. I saw him fall, and the rod came over and struck him in the head, and his feet flew up and nearly touched the train, and he dropped down and was dead. Before I went to where the man was lying, I stepped across over in front of the train and signaled the engineer to stop, and then went back in front of the engine and on around where the man lay." Witnesses say there was a rule of the railway company forbidding employés from boarding moving trains and riding on them to and from their work, but, since the passage of the statute making it unlawful to jump on moving trains, the rule had not been insisted upon. As a matter of fact, the employés did frequently, if not generally, board moving engines and trains at or near the shops just as the deceased did on this occasion. There were others on the same engine at the time he was hurt. The train was moving at the rate of about 10 miles an hour when he boarded it. As to some of these matters there may be some contradiction in the testimony, but none, it is believed, as to the more material facts.

While the case is one of first impression in this state, the clause in question is, and has been, in general use by insurance companies for a long time, and its construction is...