85 S.W. 128 (Mo.App. 1905), Bateman v. Travelers Insurance Company

Citation:85 S.W. 128, 110 Mo.App. 443
Opinion Judge:GOODE, J.
Party Name:BATEMAN, Respondent, v. TRAVELERS INSURANCE COMPANY, Appellant
Attorney:Sebree & Farrington and Woodruff & Mann for appellant. A. P. Tatlow and Sherwood, Young & Lyon for respondent.
Case Date:February 07, 1905
Court:Court of Appeals of Missouri
 
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Page 128

85 S.W. 128 (Mo.App. 1905)

110 Mo.App. 443

BATEMAN, Respondent,

v.

TRAVELERS INSURANCE COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

February 7, 1905

Appeal from Greene Circuit Court.--Hon. James T. Neville, Judge.

AFFIRMED.

Judgment affirmed.

Sebree & Farrington and Woodruff & Mann for appellant.

(1) The contract sued on, between insurer and insured, contains an express limitation on the liability of defendant. It was agreed between the parties that if injury or death happened to the insured by reason of his voluntarily exposing himself to unnecessary danger, then the defendant should not be liable. The authorities all agree that the insurance company may thus limit its liability to pay. Bean v. Ins. Co., 50 Mo.App. 464; 2 May on Insurance (3 Ed.), secs. 530, 531. (2) The question is not a question of negligence, but of contract, which the parties made and had a right to make. Overbeck v. Ins. Co., 94 Mo.App. 453, 68 S.W. 236. (3) Death by "voluntary exposure to unnecessary danger," within the meaning of the exemption clause, is where the insured intentionally does some unnecessary act, which reasonable and ordinary prudence would pronounce dangerous, and his death results in consequence thereof. Tuttle v. Ins. Co., 134 Mass. 175; Morel v. Ins. Co., 4 Bush. 535; Sawtelle v. Railroad, 15 Blatchf. 216.

A. P. Tatlow and Sherwood, Young & Lyon for respondent.

(1) There was evidence to sustain the finding of the lower court, sitting as a jury, and the judgment, will, therefore, remain undisturbed. James v. Ins. Co., 148 Mo. 15, 49 S.W. 978; Davis v. Railroad, 46 Mo.App. 180; Cohn v. Kansas City, 108 Mo. 387, 18 S.W. 973. (2) The burden of proof was upon defendant company, to show that the deceased voluntarily exposed himself to unnecessary danger. Jamison v. Ins. Co., 104 Mo.App. 306, 78 S.W. 812. (3) The second instruction was properly refused, not only because there was no evidence that the deceased voluntarily exposed himself to unnecessary danger, but also because it fails to submit that issue to the court sitting as a jury. (4) "There being several inferences deducible from the facts which appear, and equally consistent with all those facts," the defendant [plaintiff] has not maintained the proposition upon which alone it [he] would be entitled to recover. . . . When the evidence tends equally to sustain either of two inconsistent propositions, neither of them can be sad to have been established by legitimate proof." Smart v. Kansas City, 91 Mo.App. 586; Acc. Ass'n v. Merrit, 98 Mich. 338, 57 N.W. 169; Epperson v. Cable Co., 155 Mo. 382, 50 S.W. 795, 55 S.W. 1050; Fuchs v. St. Louis, 133 Mo. 196, 31 S.W. 115, 34 S.W. 508.

OPINION

[110 Mo.App. 445] GOODE, J.

This is an action on an insurance contract. The plaintiff's deceased son was insured against bodily injury sustained through external violent and accidental means, the indemnity being payable [110 Mo.App. 446] to plaintiff in case of her son's death from a cause covered by the policy. It is conceded the deceased lost his life by an accident sustained through external violence, and the death indemnity is due unless the insurance company is exonerated by the conduct of the deceased just prior to his death having constituted "voluntary exposure to unnecessary danger." The policy exempted the defendant from liability for an accident resulting from such conduct on the part of the insured. The deceased was a railroad porter on the St. Louis & San Francisco Railroad. The night he was killed the train he worked on was delayed in the course of its run and he was sent back to flag any train that might approach from the rear. This was his duty at the time. A train came along and killed the deceased. The engineer of the train testified to seeing him lying on the track as the train approached and that just before it struck him he partly raised as if about to get up. The engineer neither knew why the deceased was lying on the track nor if he was awake or asleep. This was all that was shown about what happened from the time the deceased was sent from his own train until he was run over...

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