Dillon v. Continental Casualty Co.

• Citation: 130 Mo. App. 502,109 S.W. 89
• Parties: DILLON v. CONTINENTAL CASUALTY CO.
• Decision Date: 06 April 1908
• Court: Court of Appeal of Missouri (US)

109 S.W. 89

130 Mo. App. 502

DILLON v. CONTINENTAL CASUALTY CO.

Kansas City Court of Appeals. Missouri.

April 6, 1908.

1. INSURANCE — RISKS — ACCIDENT INSURANCE — VOLUNTARY EXPOSURE.

An accident insurance policy for $1,000 provided for a reduction of the amount to $100

"where the accidental injury results from voluntary exposure to unnecessary danger, or obvious risk of injury, or the intentional act of the insured." Insured was a car repairer, and while riding through the railroad yards by standing on a step on the side of a car and holding onto a handhold he was struck by a brake rod on a car standing on a neighboring track, which rod was bent towards the track on which insured was riding, and was knocked from the car and killed. In an action on the policy, the court was asked to instruct that his act, where there were other cars standing on another track so close as not to permit the body of a person so riding to clear said stationary cars, "is a voluntary exposure to unnecessary danger or obvious risk of injury, which prevents a recovery in this case" except as to a reduced amount. The court gave the declaration, with the qualification that deceased had "knowledge of these facts." Held erroneous, as the acts specified in the policy which would reduce the amount of the insurance are affirmative acts, implying knowledge and excluding mere negligence, and the insured will be held to have known that which an ordinarily prudent man of ordinary intelligence in the same situation would have known.

2. SAME.

The court was asked to instruct that the recovery should be for the reduced amount if insured "knew [or might have known by the exercise of ordinary diligence and care] that said car was too close" to permit his passing without striking it. This instruction was modified by the court by striking out the words in brackets. Held, that the instruction as given by the court was not erroneous, as the words included in brackets would have introduced a condition in the policy which the parties had not inserted, by means of which the insured would be precluded from obtaining relief because of an injury resulting from his own negligence.

3. WORDS AND PHRASES —"VOLUNTARY ACT."

A "voluntary act" is an intentional act.

4. INSURANCE — RISKS — ACCIDENT INSURANCE — VOLUNTARY EXPOSURE — EVIDENCE.

In an action on an accident policy to recover for death of insured, which resulted from his being knocked from the side of a car on which he was riding at night through the railroad yards by coming in contact with a brake rod of a car on a neighboring track, evidence to show that he passed by this car shortly before in riding on a lighted engine in going to his work is not sufficient evidence that he observed the danger to justify the court in holding that insured knew of the dangerous proximity of the car to the track on which he was riding.

Appeal from Circuit Court, Howard County; A. H. Waller, Judge.

Action by Robert Dillon, administrator, against the Continental Casualty Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Manton Maverick and John and Jas. W. Cosgrove, for appellant. Sam C. Major and W. M. Williams, for respondent.

ELLISON, J.

Plaintiff is the administrator of the estate of James Dillon, deceased, and he brought this action upon an accident insurance policy for $1,000. The judgment in the trial court was for the plaintiff for the full amount.

By the terms of the policy it was agreed to pay to Dillon's estate $1,000 in the event that he "should receive personal or bodily injury through external and purely accidental means, resulting in the loss of life." It was further provided by the policy that, "where the accidental injury results from voluntary exposure to unnecessary danger or obvious risk of injury, or the intentional act of the insured," the liability was to be reduced to $100.

Deceased was engaged in the service of a railway company as a car repairer. On the night of April 27, 1906, he rode on a switch engine through the yards of the railway at a place called "Franklin Junction," for the purpose of inspecting a freight car. After discharging this duty he was riding back through the yards by standing on a step on the side of a car and holding onto a handhold, when he came in contact with a car standing on a near-by track. He was knocked from his place and killed. It appears that the standing car was what is known as a "flat car" with a brake rod and wheel extending up on the side above the platform of the car. This rod was bent over towards the track upon which deceased was returning so as to leave a space of about 9 inches between it and a passing car, and it was the rod or wheel with which he came in contact. The tracks were numbered 3 and 4, the standing flat car being on No. 4. It was standing there when deceased rode down to inspect the car, and could have been seen by deceased, as there were lights on each end of the engine upon which he rode by, and, if seen, could have been observed to be too close to the other track for one to ride on the side of the car in manner deceased did on his return. There was no affirmative evidence that he noticed the close proximity of the flat car, or that he noticed the brake rod was bent.

The case was tried without a jury, and the trial...