Bateman v. Travelers Insurance Company
| Decision Date | 07 February 1905 |
| Parties | BATEMAN, Respondent, v. TRAVELERS INSURANCE COMPANY, Appellant |
| Court | Missouri Court of Appeals |
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.
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 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 by the other one.
A declaration of law in the nature of a demurrer to plaintiff's case was asked but properly refused. Beyond doubt the question of whether the deceased was killed on account of a voluntary exposure to danger was for the court sitting as trier of the fact; for there was no certain proof of why the deceased was lying on the track when struck, or that he was to blame for his perilous position. Different inferences on that subject were fairly deducible.
The defendant requested another declaration of law of this purport: that if, while waiting to flag an approaching train, the deceased voluntarily sat down or lay down on the track and remained there, either asleep or awake, until a train ran over him, he was guilty of exposing himself to unnecessary danger and the defendant was not liable. The effect of that declaration was to exclude a recovery if the deceased voluntarily sat down on the track, fell asleep and remained there asleep until aroused by the train. Therefore, the question is whether such conduct necessarily constituted voluntary exposure to unnecessary danger. We hold it did not. For a railway employee to sit down on a railroad track while waiting to flag a train cannot be pronounced a voluntary exposure to danger under all circumstances. In most instances such an act would involve no danger, but could be done with impunity; and doubtless is done constantly. This is the essence of the whole matter; for if, while sitting on the track, an employee unconsciously should fall asleep, his doing so would not be a voluntary exposure to danger. As said in a former case, if a person should lie down, or otherwise dispose himself for the purpose of going to sleep on a railroad track, he would voluntarily incur an unnecessary danger. [Jamison v. Casualty Co., 104 Mo.App. 306, 78 S.W. 812.] It would be rash to presume the deceased went to sleep intentionally instead of being overcome by drowsiness. In the absence of evidence on the subject the probability is very great that if he was asleep when the train came upon him, he was in that state against his will. He knew that to go to sleep on the track was courting death and hardly would have done so unless intoxicated, of which there was no proof. In so far as the refused declaration sought to bring the case within the exception of the policy if the insured was asleep on the track, without regard to whether he went to sleep intentionally or not, it was unquestionably erroneous.
We revert to the effect on the policy if the insured voluntarily sat down on the track. As said above, such an act strikes us as prudent and attended with little or no risk--with none which the deceased was bound to anticipate and can be said knowingly to have incurred. He might go to sleep, swoon, be struck with epilepsy or paralysis, or suffer some other visitation which would render him helpless but ordinarily he would be as safe sitting on the track as standing there. In the Jamison case we examined the decisions to determine the meaning of a clause exempting the insurance company from liability if the insured was injured from "unnecessary exposure to danger or to obvious risk of injury." That exemption was more favorable to the insurance company than the present one, as the latter does not release the company unless deceased voluntarily exposed himself to unnecessary danger. The theory of exemption by inadvertent negligence on the part of the deceased is, therefore, excluded and the company must respond on its contract unless the deceased was killed in consequence of voluntarily incurring a needless risk. What is the meaning of that proviso in this class of contracts? The words "unnecessary danger" signify that the danger meant is one not incident to the duty or avocation of the insured; and this view consists with another term of the policy in which the occupation of the deceased was referred to and he was insured as a train porter; a hazardous calling. The words "voluntary exposure" signify that the insured must be exposed to danger with the consent of his will; which carries the idea that the danger incurred must be realized instead of unexpected. To bring the exemption into play the insured consciously, and of his own volition, must have encountered a risk of injury which he need not have incurred in the performance of his duties with reasonable prudence. The force of such provisos in accident policies has been determined in pertinent decisions which relieve the present case of all doubt. In Burkhard v. Ins. Co., 102 Pa. 262, it was held the company was not exempted, though the insured voluntarily did an act which exposed him to danger if he was unconscious of the...
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