Aetna Life Ins. Co. v. Vandecar

• Decision Date: 21 March 1898
• Docket Number: 934.
• Citation: 86 F. 282
• Parties: AETNA LIFE INS. CO. v. VANDECAR.
• Court: U.S. Court of Appeals — Eighth Circuit

86 F. 282

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 $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 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); * * * violating the rules of a corporation; voluntary exposure to unnecessary danger; * * * entering, or trying to enter, or leave, a moving conveyance using steam as a motive power (except cable and electric street cars); riding in or on any such conveyance not provided for transportation of passengers.'

The evidence shows that on the 11th of November, 1895, the plaintiff purchased a ticket, and was traveling as a passenger on a passenger train of the Omaha & Republican Valley Railroad, from St. Paul to Loup City, in the state of Nebraska; that the train, from St. Paul for Loup City, left St. Paul between 4 and 5 o'clock in the afternoon, and arrived at Loup City between 7 and 8 o'clock the same evening, where the train remained over night; that as the train approached Loup City on the date in question, after the whistle had sounded for the station, the plaintiff and a man by the name of John Iams went out upon the front platform of the rear coach of the train while the train was yet in motion, and going at a speed, estimated by the plaintiff, from 8 to 12 miles per hour. The plaintiff testified that while standing upon the platform of the car he had a valise in one hand, and had the other hand in his overcoat pocket; that when the train was a short distance from the station, by a sudden jolt of the car, Iams was thrown against him, causing him to fall from the platform upon which he was standing to the ground; that as he fell he caught hold of the hand rail, or step of the car,-- he did not know which,--and, landing partially on his feet, was thus pulled or dragged along for some distance, when he was obliged to relinquish his grasp, and was thrown under the car, the rear truck of which run over his right hand, bruising and mangling it to such an extent that amputation above the wrist became necessary. Neither the conductor, who was on the rear platform of the baggage car immediately in front of the car upon the front platform of which the plaintiff stood, nor the brakeman, who was standing upon the steps of the platform of the front end of the passenger coach, heard any outcry or exclamation from the plaintiff or any one else, and did not know of the injury to the plaintiff until after the train had stopped at the station. The plaintiff was first discovered, after the injury, by the porter of the St. Elmo Hotel, at Loup City, who came down to meet the train with the bus, and by the light of his lantern saw the plaintiff kneeling on his knees with his right hand on the rail of the track. The evidence further shows that the train upon which plaintiff was traveling consisted of a freight car, baggage car, and combination coach; that the cars were equipped with air brakes in perfect order; that there was a rule in force upon the Omaha & Republican Valley Railway, at the time of this accident, prohibiting passengers from riding upon the...