Beard v. Indemnity Ins. Co.
| Decision Date | 09 March 1909 |
| Citation | 64 S.E. 119,65 W.Va. 283 |
| Parties | BEARD v. INDEMNITY INS. CO. |
| Court | West Virginia Supreme Court |
Submitted March 17, 1908.
Syllabus by the Court.
In an action on a policy of accident insurance, evidence that insured was found lying at the bottom of a wall, badly injured, near the unrailed top of which he was reclining on a bench only shortly before, alone, and in the darkness of night, makes a prima facie case of injury by violent, external, and accidental means.
[Ed Note.-For other cases, see Insurance, Dec. Dig. § 665 [*]]
In such case, unless the injury is shown to have been intentionally self-inflicted, or intentionally inflicted by some other person, the legal presumption is that it was accidental.
[Ed Note.-For other cases, see Insurance, Cent. Dig. § 1664; Dec Dig. § 646. [*]]
Where an accident policy is conditioned against liability or injury happening while insured is intoxicated, and where plea in that behalf is to be successfully relied upon, the evidence must show that insured was actually intoxicated at the time the accident befell him.
[Ed. Note.-For other cases, see Insurance, Cent. Dig. § 1179; Dec. Dig. § 460. [*]]
Evidence as to appearances of intoxication, or their absence, by witnesses who saw insured immediately before or after the injury, is proper and admissible in that behalf.
[Ed. Note.-For other cases, see Evidence, Dec. Dig. § 132. [*]]
It is a general rule that, where the issue is whether a person did a particular thing, or was in a particular state, the fact that he did a similar thing, or was in a similar state, at some other time is inadmissible.
[Ed. Note.-For other cases, see Evidence, Dec. Dig. § 129. [*]]
In an accident policy, excepting liability for injury to insured while on the roadbed or bridge of a railway, the manifest intention is to exempt the insurer from responsibility for injury caused by collision with moving trains thereon.
[Ed. Note.-For other cases, see Insurance, Cent. Dig. §§ 1171, 1172; Dec. Dig. § 451. [*]]
In an accident policy which exempts liability as to an injury caused by the insured's "voluntary exposure to unnecessary danger," those words are properly interpreted to refer only to danger of a real, substantial character, which the insured recognized, but to which he nevertheless purposely and consciously exposed himself, intending at the time to assume all the risks of the situation.
[Ed. Note.-For other cases, see Insurance, Cent. Dig. § 1180; Dec. Dig. § 461. [*]
For other definitions, see Words and Phrases, vol. 8, pp. 7346-7350; vol. 8, p. 7830.]
Words of exception from liability, in an accident insurance policy, are construed liberally in favor of the insured.
[Ed. Note.-For other cases, see Insurance, Cent. Dig. § 295; Dec. Dig. § 146. [*] ]
The phrase "voluntary or negligent exposure to unnecessary danger," in a policy of accident insurance exempting the insurer from liability for injury from cause so expressed, is a cumulative or redundant expression, and is properly interpretable as "voluntary exposure to unnecessary danger."
[Ed. Note.-For other cases, see Insurance, Cent. Dig. § 1180; Dec. Dig. § 461. [*]]
Sitting or lying on a bench at the side of a building, near the top of an unguarded wall, on a dark night, it not appearing that insured in so doing was conscious of the pitfall, or had knowledge of his surroundings, is not "voluntary exposure to unnecessary danger," within the meaning of those terms in a policy of accident insurance, exempting the insurer from liability for injury caused by such exposure as is defined by said terms.
[Ed. Note.-For other cases, see Insurance, Dec. Dig § 461. [*]]
A verdict fairly rendered, in a case fairly submitted to a jury, should not be set aside by the court, unless manifest injustice has been done, or the verdict is plainly not warranted by the evidence.
[Ed. Note.-For other cases, see New Trial. Cent. Dig. §§ 135-140; Dec. Dig. § 68. [*]]
Error to Circuit Court, Cabell County.
Action by Thomas Beard against the Indemnity Insurance Company. There was a verdict for plaintiff, and from an order setting the same aside and granting a new trial, plaintiff brings error. Reversed, and judgment rendered.
Wyatt & Graham, for plaintiff in error.
McComas & Northcott, for defendant in error.
On the trial of an action upon a policy of insurance against death resulting from bodily injuries caused by external, violent, and accidental means, a verdict was rendered by the jury in favor of the beneficiary for the amount to be paid by the insurer upon the happening of such contingency. That amount was $1,000. The verdict was set aside as contrary to law and the evidence, and a new trial was awarded.
To that action of the court below this writ of error is prosecuted.
To justify the aforesaid action of the court it must be found that errors were committed at the trial to the prejudice of the defendant, or that the verdict was contrary to law and the evidence. Robinson v. Kistler, 62 W.Va. 489, 59 S.E. 505. The defendant does not complain that errors to its prejudice were made at the trial of the case. It relies upon the assertion that the verdict was contrary to law and the evidence. Then it is as to this assertion only that we are called upon to inquire.
The real substance of the evidence is as follows: The insured was found, some time between 9:30 and 10:30 o'clock at night, badly injured, at the foot of a high wall where Sixteenth street, in the city of Huntington, passes under the tracks of the Chesapeake & Ohio Railway. He was unconscious at the time, and died a few hours later in a hospital, never having regained consciousness. Just before he was found injured, insured was seen lying on a bench by the side of the telegraph office, which is situated at the top of this wall, very near its edge, and just above the point at which he was found. The telegraph office is near the railway tracks, and on a level therewith, it seems. The wall is one necessary to the lowering of the street so as to make the street cross the railroad under grade. At the telegraph office it was not guarded by a railing. The night on which the injury occurred was dark, and the electric light at the intersection of Sixteenth street and the railroad was not burning. The insured was an extra locomotive fireman of the railway company. His run was from Russell, Ky. to Handley, W.Va. He frequently stayed with his brother, the beneficiary of the policy, who resided in Huntington; but he had not been there for several days. The road foreman of engines testifies that men making such run out of Russell, but living in Huntington, frequently board trains at the telegraph office above designated to deadhead to Russell. There is no direct evidence, however, that the insured was ever at this telegraph office before. The yard clerk, whose duties were at that place, and whose office was located there, when asked if he had ever seen the insured come there to take a train, replied: "I don't know whether I ever saw him; no, sir." No one knows just how the injured man came to fall from the wall. A hostler who was attending some engines there saw the insured lying on the bench as he passed into the office. The insured was still lying there when this hostler came out of the office, and walked to the upper end of the railway bridge over the street. When he reached that part of the bridge, he heard an unusual noise. He at once returned toward the office, and noticed that the insured was not on the bench. An investigation was immediately made, and insured was found below the wall as mentioned above. The yard clerk testifies that he saw the insured sitting on this same bench near the same hour above named, that he addressed him in a friendly way, and that the insured answered. He did not know the insured personally. It was this yard clerk and the hostler who found him at the bottom of the wall. Both testify that they observed no evidence of intoxication, either before or after they found him. By the police judge it was proved that two or three days before the accident the insured had been brought into his court on a charge of drunkenness. Insured was comparatively sober at the time he was tried. He was not again seen by said official. The secretary of the insurance company testifies that he saw the insured the day before he was injured, and that he was then intoxicated. A policeman testifies that he saw him near a saloon some time after supper the evening on which the accident occurred, and adds that it was The policeman says the insured "looked like he was intoxicated right smartly when he came through." It seems that the insured passed through the saloon. The policeman, however, says that he was not drunk enough to be arrested; that he was not disturbing the peace; that he did not smell insured's breath; and that he did not see him drink anything. He testifies that the saloon was crowded, but can name no other of the many people there; nor can he tell how the insured was dressed, what kind of hat he wore, or whether or not he had on his working clothes. The physician who attended the injured man as a witness for plaintiff described the extent of the injuries, and the result thereof. This witness, though, was not examined by either party as to whether or not any evidences or appearances of intoxication were manifest.
The policy provided that it did not cover any injury occasioned wholly or partly, directly or indirectly, by many things among them being intoxication, and voluntary or negligent exposure to unnecessary danger. And it also provided no insurance against injury received while the insured was on a...
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