Conboy v. Ry. Officials' & Employes' Acc. Ass'n

Citation46 N.E. 363,17 Ind.App. 62
PartiesCONBOY v. RAILWAY OFFICIALS' & EMPLOYES' ACC. ASS'N.
Decision Date17 February 1897
CourtCourt of Appeals of Indiana

OPINION TEXT STARTS HERE

Appeal from superior court, Marion county; P. W. Bartholomew, Judge.

Action by Margaret Conboy against the Railway Officials' & Employés' Accident Association. There was a judgment for defendant on the pleadings, and plaintiff appeals. Reversed.

Pickens & Cox, for appellant. Finch & Finch, for appellee.

BLACK, J.

The appellant, by her complaint, sought to recover upon the appellee's policy, whereby it was agreed to pay the appellant, as beneficiary, $1,000 in the event of the death of Cornelius Horan, resulting from physical bodily injury inflicted by external, violent, and accidental means during the period of one year from October 6, 1891. In the complaint it was alleged that said Cornelius Horan was drowned on the 3d of June, 1892, “by accidentally slipping and falling into a deep hole in ----- river, in the county of -----, state of Texas, from which place and deep water said Cornelius Horan was unable to swim or in any manner proceed, or to keep his head above water, though he diligently tried so to do,” etc. The appellee answered in three paragraphs. The first was a general denial. The policy referred to, and made part of the contract, contained certain conditions printed on the back thereof, among which were provisions that the insurance should not cover “death or injury resulting from accident attributable partially or wholly, directly or indirectly, by or in consequence of * * * voluntary exposure to unnecessary danger or perilous venture, * * * or injuries or death while being engaged in any unlawful or vicious act.” The second paragraph of answer set up said provision of the contract relating to “injuries or death while being engaged in any unlawful or vicious act,” and alleged that said Cornelius Horan, at the time of his death, was engaged in an unlawful and vicious act, in this: that it is provided in the statute laws of the state of Texas, wherein said Horan came to his death, as follows (section 717, Willson's Ann. Cr. St.; article 510, Pen. Code 1895): “No person shall throw, drag or haul any fish net, seine or other contrivance for catching fish (except ordinary pole, line and hook, or trot line) in any stream, lake or pool of water within the state, not his own, above tide water, between the first day of February and the first day of July of each year, and at no time of the year, in such waters, shall any one be permitted to drag or haul any fish net or seine with meshes less than two and one half inches square; and any one violating the provisions of this article shall, upon conviction, be fined in a sum not less than five nor more than fifty dollars.” It was alleged that this statute was in full force and effect on and before the death of said Cornelius Horan; that at the time of his death, on the 3d of June, 1892, he “was engaged in throwing, dragging, or hauling a fish net or seine in the ----- river, in the county of -----, state of Texas, at a place not owned by him or any of his companions.” The third paragraph set up said provision relating to death or injury resulting from, or attributable partially or wholly, directly or indirectly, by or in consequence of, voluntary exposure to unnecessary danger or perilous venture; and it was alleged that the death of said Cornelius Horan was the result, or was attributable partly or wholly, directly or indirectly, to, and in consequence of, his engaging in a perilous venture, and to voluntary exposure to unnecessary danger, in this: that on the 3d of June, 1892, he, together with a number of others, was engaged in throwing, dragging, or hauling a fish net or seine in the ----- river in ----- county, state of Texas; that said river was very swift, and full of sudden step-offs or holes, and of whirls and eddies; that at said time said Horan had on his clothes and boots or shoes; that while so engaged in throwing, dragging, or hauling said seine in said river, he suddenly came to one of these step-offs or holes, and to a swirl or eddy, and stepping into said hole, swirl, or eddy, where the water was very deep, and being unable to swim or keep his head above the water, was drowned. The appellant's demurrer to each of these affirmative paragraphs of answer was overruled, and the appellant was ruled to reply. Afterwards the appellee withdrew its answer of general denial. The appellant refused to plead further, the cause was submitted to the court for finding and judgment upon the pleadings, and the court found for the appellee, and rendered judgment accordingly.

We are required to consider the action of the court in overruling the demurrer to the second and third paragraphs of answer. These provisions printed upon the back of the policy were not conditions precedent. They were exceptions to the contracted insurance. They provided that the particular cases of injury or death specified should not be covered by the insurance contracted for on the face of the policy. The existence of facts bringing the death of the insured within such an exception would constitute matter of defense, and the burden of pleading and proving such facts was upon the insurer. It was proper to set forth in each of the answers the particular provision of the contract upon which the pleader intended to base the defense, and it was not improper to make an averment in the language of the contract bringing the death within the exception so pleaded; but in the second paragraph it was necessary to show an unlawful act, by the averment of facts constituting a violation of law or a vicious act, and this general averment in the language of the exception pleaded was controlled by the particular facts which were alleged to show the death to have been within such exception. By the averments of facts in the second paragraph, ...

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