83 S.W. 276 (Mo.App. 1904), Alter v. Union Casualty and Surety Company

Citation:83 S.W. 276, 108 Mo.App. 169
Opinion Judge:REYBURN, J.
Party Name:ALTER, Respondent, v. UNION CASUALTY and SURETY COMPANY, Appellant
Attorney:Percy Werner for appellant. Albert G. Morrison for respondent.
Case Date:November 15, 1904
Court:Court of Appeals of Missouri
 
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Page 276

83 S.W. 276 (Mo.App. 1904)

108 Mo.App. 169

ALTER, Respondent,

v.

UNION CASUALTY and SURETY COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

November 15, 1904

Appeal from St. Louis City Circuit Court.--Hon. D. D. Fisher, Judge.

REVERSED AND REMANDED (with directions).

Judgment reversed and cause remanded.

Percy Werner for appellant.

(1) The injury which resulted in the loss of respondent's left hand was clearly the result of a voluntary exposure to avoidable danger. Bean v. Employer's Liability Corp., 50 Mo.App. 459; Overbeck v. Ins. Co., 93 Mo.App. 453; Glass v. Accident Assn., 112 F. 495; Ins. Co. v. Jones, 80 Ga. 541; Follis v. Accident Assn., 94 Ia. 435; Willard v. Accident Assn., 169 Mass. 288; Smith v. Accident Assn., 104 Mich. 634; Sheblin v. Accident Assn., 94 Wis. 180; Price v. Life and Accident Co., 99 N.W. 887; Small v. Travellers' Pro. Assn., 118 Ga. 900; Cornish v. Ins. Co., 23 Q. B. 543. (2) Attaching oneself to and climbing over moving freight cars, simply for the purpose of making a short cut or of saving time, by one not employed on the train, and in a railroad yard in which there are numerous tracks, and dotted all over with semaphore or signal posts and switch stands, is gross negligence. Hudson v. Railroad, 101 Mo. 13, 14 S.W. 15; Corcoran v. Railroad, 105 Mo. 399, 16 S.W. 411; Murphy v. Railroad, 43 Mo.App. 342; Heaton v. Railroad, 65 Mo.App. 479.

Albert G. Morrison for respondent.

(1) The general rules of law relating to negligence do not apply in measuring the liability of the company under an accident insurance policy. Keene v. Mut. Acci. Assn., 161 Mass. 149; Schneider v. Ins. Co., 24 Wis. 28; Collins v. Ins. Co., 96 Iowa 216. (2) The term "voluntary exposure to avoidable danger" relates to dangers of a substantial character which the assured realized and which he consciously and intentionally assumed. Accident Assn. v. Hubbell, 56 Ohio St. 516; Ins. Co. v. Mitchell, 47 U.S. App. 260, 24 C.C.A. 305, 78 F. 754; Smith v. Ins. Co., 56 L.R.A. 271; Follis v. Accident Assn., 94 Iowa 435, 28 L.R.A. 78; 2 May on Insurance (3 Ed.), sec. 530. (3) The burden of proof was on defendant to show a state of facts bringing the case within the provision of the policy relating to "voluntary exposure to avoidable danger." Sutherland v. Life Ins. Co., 87 Iowa 505; Jones v. Accident Assn., 92 Iowa 652.

OPINION

[108 Mo.App. 171] REYBURN, J.

Respondent brought this action upon a general accident policy of insurance issued for the principal sum of $ 2,000 against bodily injuries sustained through external, violent and accidental means, if death should result from such injuries within ninety days, and in event that loss by actual separation at or above the wrist of the left hand should so result within ninety days, the company to pay the assured one-third of the principal sum, above named. The petition setting forth the terms of the contract of insurance, charged that on the twenty-fourth day of June, 1903, while the policy was in full force and effect, as plaintiff was riding on cars in yards of the Terminal Railroad Association, in the city of St. Louis, he was struck by a semaphore or signal post...

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