Continental Casualty Company v. Whitmore
| Decision Date | 19 December 1922 |
| Docket Number | 11,365 |
| Citation | 137 N.E. 575,79 Ind.App. 157 |
| Parties | CONTINENTAL CASUALTY COMPANY v. WHITMORE |
| Court | Indiana Appellate Court |
From Lake Superior Court; Virgil S. Reiter, Judge.
Action by Clara Rhodes Whitmore against the Continental Casualty Company. From a judgment for plaintiff, the defendant appeals.
Affirmed.
Bomberger Peters & Morthland, for appellant.
Fred Barnett, for appellee.
In this action appellee recovered a judgment against appellant on a policy of insurance, issued by the latter to Roy Rhodes and in which the former was named as the beneficiary, in the event the insured lost his life by accident or sickness within the conditions of the policy, while the same was in force. The complaint is in a single paragraph, and discloses that the policy contains, among others, the following provision: "This policy does not cover any loss caused by or resulting in whole or in part from * * * injury sustained by the insured by reason of voluntary exposure to unnecessary danger," etc. Appellant's answer consists of two paragraphs. The first is a general denial, and the second is an affirmative paragraph, based on the provision of the policy quoted, to which a reply in denial was filed. The cause was submitted to a jury for trial, which resulted in a verdict and judgment in favor of appellee. Appellant filed a motion for a new trial, which was overruled, and this action of the court constitutes the only error assigned on appeal.
Appellant contends that the court erred in refusing to give instructions Nos. 1, 8 and 9 requested by it. There was no error in refusing to give instruction No. 1, as certain language used therein would tend to lead the jury to believe that the fact that the decedent met his death while riding upon a freight car, without lawful authority from any agent of the company operating the same, if it so found, might be taken as a controlling factor in determining appellant's liability. Instruction No. 8 was properly refused, as it omits the essential element of knowledge on the part of decedent concerning the dangers naturally resulting from riding on top of a freight train in motion.
Said instruction No. 9 is as follows: "If you find from the evidence that the act of the decedent in voluntarily riding on the top of a moving freight train would be considered by ordinarily prudent persons, as a dangerous thing, and that the said Roy Rhodes, knew, or by the exercise of due care, could have known, that such act was dangerous, and that said Roy Rhodes rode on the top of such train, for no necessary purpose, but only for the purpose of pleasure or sport, then I instruct you that he, the said Roy Rhodes, voluntarily exposed himself to unnecessary danger, and the plaintiff herein cannot recover." (Our italics.) It will be observed that said instruction would have informed the jury, in effect, that appellee could not recover if it found, among other things, "that the act of the decedent in voluntarily riding on the top of a moving freight train would be considered by ordinarily prudent persons, as a dangerous thing, and that the said Roy Rhodes, knew, or by the exercise of due care, could have known, that such act was dangerous," regardless of the care used by said decedent to avoid such danger, and any other attending circumstances. This is clearly not the law, and of itself would have rendered such instruction erroneous. It is a fact of common knowledge, that certain acts are dangerous under some circumstances, and comparatively free from danger under other circumstances, and hence appellee was entitled to have the jury determine whether, under all the circumstances shown by the evidence, it was dangerous for the decedent to ride on top of the particular moving train in question in the manner shown thereby, and not whether ordinarily prudent persons would consider riding on the top of moving trains generally as a dangerous thing. This instruction would also have informed the jury, in effect, that if it found the facts stated to exist, that appellee could not recover, although the particular danger which the undisputed evidence shows caused the accident, was not among those which ordinarily rendered riding on top of a moving freight train dangerous, and not one of which the decedent had knowledge, and might reasonably have anticipated would happen.
The most serious question, however, arises from the presence of the words in the instruction, which we have italicized. These words clearly import a distinction in the effect on the right of recovery, under a policy like the one in suit, between cases where the injury occurs while the insured is in the pursuit of business, or some other purpose considered necessary, and cases where the injury is sustained in the pursuit of pleasure, or some other purpose considered unnecessary. We do not recognize such a distinction. To do so would violate the rules relating to insurance contracts which provide, that such contracts will be liberally construed in favor of the insured, to the end that the evident intention existing at the time they were entered into may not be thwarted by a narrow or technical interpretation of the language employed, and that when so drawn as to be fairly susceptible of two different constructions, they will be given that construction most favorable to the insured. Globe, etc., Ins. Co. v Hamilton (1917), 65 Ind.App. 541, 116 N.E. 597; German Baptist Assn. v. Conner (1916), 64 Ind.App. 293, 115 N.E. 804. The pursuit of pleasure, or indulgence in sport, is a recognized right of an individual, and is recommended by physicians as a means of preserving and promoting health. To hold that an individual, who voluntarily exposes himself to danger while so doing, and is injured thereby, cannot recover under a policy like the one in suit, because the danger was unnecessary, in that it was sustained in the pursuit of pleasure or sport, rather than business or other needful purpose, would lead to a conclusion approaching an absurdity. A contrary holding does not render...
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