86 F. 282 (8th Cir. 1898), 934, Aetna Life Ins. Co. v. Vandecar

Docket Nº:934.
Citation:86 F. 282
Party Name:AETNA LIFE INS. CO. v. VANDECAR.
Case Date:March 21, 1898
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 282

86 F. 282 (8th Cir. 1898)

AETNA LIFE INS. CO.

v.

VANDECAR.

No. 934.

United States Court of Appeals, Eighth Circuit.

March 21, 1898

Charles J. Greene and Ralph W. Breckenridge, for plaintiff in error.

E. Wakeley (A. C. Wakeley, on the brief), for defendant in error.

Before SANBORN and THAYER, Circuit Judges, and RINER, District Judge.

RINER, District Judge.

This is an action upon an accident policy of insurance. In the petition setting out the plaintiff's cause of action it is alleged that the defendant is a corporation organized under the laws of the state of Connecticut, and carrying on a life and accident insurance business in the state of Nebraska and elsewhere; that on the 14th of October, 1895, at Omaha, Neb., in consideration of the sum of

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$25, the premium to it duly paid by the plaintiff, and of certain alleged warranties made in the application for insurance, the defendant executed and delivered to the plaintiff its 'combination accident policy' No. 213,045, for the principal sum of $10,000, wherein and whereby the defendant company insured the plaintiff, under classification 'select,' being a life insurance agent by occupation, for the term of six months from noon of the 14th day of October, 1895, in the sum of $50 per week against loss of time, not exceeding 52 consecutive weeks, resulting from bodily injury effected during the term of said insurance by external, violent, and accidental means which should, independently of any other causes, immediately and wholly disable him from prosecuting any and every kind of business pertaining to his occupation, above stated; or, said policy further provided, if such injury alone resulted within 90 days in the loss, by removal, of the right hand at or above the wrist, or either leg at or above, the knee, the said defendant would pay to the said plaintiff one-half ($5,000) of the principal sum insured in lieu of weekly indemnity as therein provided, and the said policy should cease, and be surrendered to the company. It is also alleged that it is further provided in the policy, if such injuries are sustained while riding as a passenger in a passenger conveyance using steam, cable, or electricity as a motive power the amount to be paid shall be double the sum above specified; and in case of accident notice shall be given to the defendant, and that proof of loss of a limb, or death, or sight, as the case may be, shall be furnished within seven months from the happening of the accident. It is also alleged that, after the payment of the premium, and its receipt and acceptance by the company, and after the issuance and delivery of the policy, and while the same was in full force and effect, on the 11th of November, 1895, the plaintiff was riding, as a passenger, in a passenger conveyance using steam as a motive power, to wit, on a passenger train of the Omaha & Republican Valley Railroad Company; that upon arriving in Loup City, in Howard county, Neb., at about 7:30 in the evening, after the station of Loup City had been called, and the doors of the car opened by the conductor, the plaintiff, who had arisen from his seat, was standing on the platform of the car, with his valise in hand, ready to alight, when the car was given a sudden and violent impetus and jerk, throwing the plaintiff down on the steps of the platform, and thence to the ground, and in such a manner that, although the plaintiff exercised due care in the premises, and made all of the effort which it was possible for him to make to avoid the injury, the wheel of the car ran over his right hand, and the plaintiff thus received a bodily injury through violent, external, and accidental means: that the result of the injury was such as to necessitate the amputation of the plaintiff's right hand above the wrist. It is then alleged that the plaintiff, at the time of the injury, was the owner and holder of the policy, and that he immediately notified the insurance company of the accident, and that within seven months from the date of the accident he furnished the defendant proof of the loss of his right hand, and duly complied with, and in every respect performed, all of the conditions of the policy on his part to be performed, and prayed judgment for $10,000. The defendant, in its

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amended answer, admits the corporate existence of the defendant, and that on the 14th day of October, 1895, in consideration of the warranties made in the application therefor and of the premium paid by the plaintiff to the defendant, it issued a policy of accident insurance to the plaintiff substantially as set out in the second paragraph of his petition, but denies that the injuries for which the plaintiff seeks to recover were effected through accidental means, and denies that the plaintiff was injured while riding as a passenger in a passenger conveyance. It then sets out certain warranties in the application, and alleges that they were false, and known by the plaintiff to be false. It also alleges that the plaintiff violated the rules of the railroad company on whose train he was a passenger by riding upon the platform of a moving car; that he voluntarily exposed himself to unnecessary danger by leaving a seat inside of the car, and going upon and riding upon the platform; that he exposed himself to unnecessary danger by trying to leave a moving conveyance using steam as a motive power. It then denies each and every allegation in the plaintiff's petition not specifically admitted or denied. January 21, 1897, the plaintiff filed a reply to the amended answer. There was a trial, verdict and judgment for the plaintiff in the sum of $10,612.50 and costs.

The policy, by its terms, insures the plaintiff for the term of six months, commencing at noon on the 14th of October, 1895, in the sum of $50 per week, against loss of time, not exceeding 52 consecutive weeks, resulting from bodily injuries effected during the term of the insurance from external, violent, and accidental means. The policy also provides that, if such injuries alone result within 90 days in loss, by removal, of the plaintiff's right hand at or above the wrist, the defendant will pay to him one-half of the principal sum insured, in lieu of weekly indemnity as therein provided; and, if such injuries are sustained while riding as a passenger in a passenger conveyance using steam, cable, or electricity as a motive power, the amount to be paid shall be double the sum specified. The policy was issued subject to certain conditions printed thereon, which were made a part of the policy, and among these conditions are the following:

'This insurance does not cover * * * accident, nor death, nor loss of limb or sight, nor disability, resulting wholly or partly, directly or indirectly, from any of the following causes, or while so engaged or affected: * * * Intentional injuries inflicted by the insured or any other person (assaults by burglars and robbers excepted)...

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