78 S.W. 812 (Mo.App. 1904), Jamison v. Continental Cas. Company

Citation:78 S.W. 812, 104 Mo.App. 306
Opinion Judge:GOODE, J.
Party Name:JAMISON, Respondent, v. CONTINENTAL CASUALTY COMPANY, Appellant
Attorney:L. D. Grove for appellant. Lamar, Barton & Lamar for respondent.
Judge Panel:GOODE, J. Bland, P. J., and Reyburn, J., concur.
Case Date:February 02, 1904
Court:Court of Appeals of Missouri
 
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Page 812

78 S.W. 812 (Mo.App. 1904)

104 Mo.App. 306

JAMISON, Respondent,

v.

CONTINENTAL CASUALTY COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

February 2, 1904

Appeal from Texas Circuit Court.--Hon. L. B. Woodside, Judge.

Judgment affirmed.

L. D. Grove for appellant.

(1) The petition does not state facts which will warrant the judgment rendered in this case; in this, that it fails to state that the mortal wound from which death resulted, was received from accidental causes, but disclaims all knowledge as to how the wound was received. Laessig v. Protective Association, 169 Mo. 280; Bank v. Fisher, 55 Mo.App. 53. (2) The case was tried upon the theory that the burden of proof was on the defendant. This is the theory of the plaintiff in his pleadings, and seems to have been the theory of the court, as appears from this record. This was an erroneous theory. When there are facts proven, which reasonably account for occurrence, all presumptions of fact which could otherwise have been indulged in, are removed. Brownlow v. Wallace, 61 Mo.App. 124. (3) There is no presumption of law, that the wound causing death in this case was from accidental causes, from the fact alone, that he was struck by a moving train, as was assumed in this case. The insured was bound by the condition of his contract; that he would not unnecessarily expose himself to danger, under penalty of forfeiting rights to the larger amount named in the policy. Overback v. Ins. Co., 94 Mo.App. 453. (4) If the insured went to sleep on the railroad track, knowing that trains were likely to pass over the road, that act forfeited the right to receive--in case of being killed--more than one hundred dollars; this was the terms of his contract. If insured unnecessarily placed himself so near a moving train, as to be hit thereby, this act was a forfeiture of his right to recover more than one hundred dollars, if killed thereby, for he had so agreed in his contract. Van Back v. Railroad, 171 Mo. 338; Errickson v. Railroad, 171 Mo. 647.

Lamar, Barton & Lamar for respondent.

(1) Appellant complains for the first time in this court that plaintiff's petition does not state that the mortal wound was accidentally inflicted. This contention is not well founded, for the following reasons: (a) The petition uses the exact language of the policy, brings the injury within its terms, and follows an approved form. VanCleave v. Union Cas. & S. Co., 82 Mo.App. 672. (b) Defendant introduced evidence upon this issue, tried the case as though the allegation had been made, and can not now complain of its absence. Sawyer v. Railroad, 156 Mo. 476 et seq.; R. S. 1899, secs. 659 and 865. (c) This allegation may, at least be clearly inferred from what is stated, and after verdict this inference will be made. McDermott v. Claas, 104 Mo. 14. (d) The answer "admits that Oscar Jamison received a wound in his head which caused his death, as alleged in the petition;" states that the injury was produced by a train striking him, and refers to the occurrence as an accident. By so doing, it expressly aids the petition on this point. Bliss on Code Pleading, sec. 437; Summers v. Fid. Mut. Aid Assn. 84 Mo.App. 609. (2) Complaint is also made that "the petition does not state sufficient facts to warrant a judgment beyond the sum of one hundred dollars." We suppose this is intended to assert the rule that plaintiff's petition should have negatived the limitations and exceptions in the policy, as to the matters set up in the answer. It is useless to cite authorities to show the fallacy of this position. Meadows v. Ins. Co., 129 Mo. 90. (3) Complaint is also made that "the case was tried upon the theory that the burden of proof was on the defendant." In the first instance, unquestionably, the burden was on the plaintiff to establish the accidental death, unless it was admitted by the pleadings, which we think was done. DeZell v. Fid. & Cas. Co., 78 S.W. 1118. (4) An unintentional and involuntary exposure will not help defendant. Deceased must have known of the danger and intentionally exposed himself to it. Niblack on Ben. Soc. & Acc. Ins., 708; 1 Cycl. Law and Proc., 300 The burden of proving the limitations and exceptions set up in the answer, is upon defendant. 50 Am. St. Rep. 427 and note; 1 Cycl. of Law & Proc., 290. After verdict every reasonable inference will be drawn in favor of the judgment. (5) Bearing in mind the nature of this exposure and the burden of proof we will consider the evidence upon this issue. Its unsatisfactory character is demonstrated by the fact that defendant in this court is unable to say whether deceased's negligence was sleeping on or standing too near the track, and it takes this double position. The fact that his body was found mangled near a railroad track is not sufficient to establish this exposure and the other evidence does not, in any reasonable way, point to it. Much less with that certainty authorizing the court to declare as a matter of law that deceased did so expose himself.

GOODE, J. Bland, P. J., and Reyburn, J., concur.

OPINION

Page 813

[104 Mo.App. 310] GOODE, J.

The plaintiff sued an accident insurance company, on a policy of insurance to recover one thousand dollars. The policy was taken by Oscar Jamison, in favor of his father, the plaintiff. The contract contained, among other things, a stipulation that the company would pay to the plaintiff one thousand dollars if the insured, during the life of the policy, should meet death by external, violent and purely accidental means. The deceased was employed by the Gulf, Colorado & Santa Fe Railroad Company and was killed, presumably, by being struck by a train. He was a bridge carpenter, but had been detailed to flag trains and see that their speed was reduced to four miles an hour before they passed over the company's bridge No. 266. At six o'clock in the evening of April 15, 1902, he left Sanger, a station on the railroad in the State of Texas, with orders to go to the bridge and flag all trains [104 Mo.App. 311] that came along. He was not seen again until the next morning and was then found lying about fifty feet from the west side of the bridge and twenty feet south of it. He had a large wound in the back of his head, bruises on the left side of it and on his right leg between the hip and the knee. There was evidence to show that he tottered to that spot after being struck by the train. Blood was detected on the ties near the bridge and footprints and blood stains were traced from the track to where he lay. His lantern was near the ties and his hat on the track cut in two.

The answer, besides a general denial, pleaded that the deceased was sent to the bridge to flag trains, which duty required him to keep awake and to stand on the east...

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