Equitable Acc. Ins. Co. v. Osborn

• Decision Date: 10 June 1890
• Citation: 9 So. 869,90 Ala. 201
• Parties: EQUITABLE ACC. INS. CO. v. OSBORN.
• Court: Alabama Supreme Court

9 So. 869

90 Ala. 201

EQUITABLE ACC. INS. CO. v. OSBORN.

Supreme Court of Alabama

June 10, 1890

Appeal from city court of Birmingham.

Action by Osborn against the Equitable Accident Insurance Company on an accident policy. Judgment for plaintiff. Defendant appeals. Reversed.

G R. Harsh and Bowman & Harsh, for appellant.

E T. Taliaferro, for appellee.

SOMERVILLE J.

1. The first plea of the defendant, being a general denial of all the allegations of the complaint, necessarily put in issue the execution of the written policy of insurance which was the foundation of the suit, as well as the plaintiff's ownership of the policy, as the beneficiary under it. The plea should therefore have been supported by affidavit, and for want of such verification it was subject to the demurrer which was interposed to it, and was properly sustained by the trial court. Railway Co. v. Gilmer, 85 Ala. 423, 5 South. Rep. 138; Code 1886, §§ 2676, 2770; Manning v Maroney, 87 Ala. 563, 6 South. Rep. 343.

2. The third plea was too vague and uncertain in its averments, and therefore necessarily ambiguous in meaning. It, moreover states legal conclusions instead of facts, and was subject to demurrer on these and other grounds, sustained by the court. Carmelich v. Mims, 88 Ala. 335, 6 South. Rep. 913.

3. The fourth plea was subject to like objections, as stated in the demurrer to it.

4. The court erred in not sustaining the plaintiff's motion to exclude the policy of insurance on the ground of variance. The complaint describes the policy as running for the term of one year from date, which was February 18, 1888. We discover nothing in the terms of the policy, or in the other evidence, which indicates how long the risk was to run. This may be an inadvertent omission; but, as the bill of ex ceptions purports to contain all the evidence, the objection to the admission of the policy should have been sustained. In addition to this, we may observe that the evidence shows that the accident which produced the death of the insured happened on May 30, 1889 or more than a year after the issue of the policy, and the risk was not, therefore, covered by the time for which the policy described in the complaint was to remain in force. This, of itself, is fatal to any recovery, as the facts of the case now stand.

5. The policy insures against death and certain other injuries, effected through "external, violent, and accidental means." That the death of the insured resulted from precisely such a cause, the evidence leaves no doubt. The insured came speedily to his death by stumbling and falling, as he ran towards the railroad track upon the approach of a passenger train, coming in sudden contact with the steam-chest on the side of a railway engine. The injury, therefore, comes within the general terms of the policy, unless taken out by some one of the exceptions.

6. One of the exceptions, not covered by the policy, is "voluntary exposure to unnecessary danger." It is contended that the facts of the present case bring it within the terms of this exception. The phrase, "voluntary exposure to unnecessary danger," involves the idea of "intentionally doing some act which reasonable and ordinary prudence would pronounce dangerous." As said in an analogous case, where the same phrase was construed "The approach to an unknown and unexpected danger does not make the act a voluntary exposure thereto. The result of the act does not necessarily determine the motive which prompted the action. The act may be voluntary, yet the exposure involuntary. The danger being unknown, the injury is accidental." Burkhard v. Insurance Co., 102 Pa. St. 262. Death by accident has been defined to be "death from any unexpected event which happens as by chance, or which does not take place according to the usual course of things," (Insurance Co. v. Burroughs, 69 Pa. St. 43;) and again, as "any event which takes place without foresight or...