Fid. & Cas. Co v. Chambers

• Decision Date: 29 April 1896
• Court: Virginia Supreme Court
• Parties: FIDELITY & CASUALTY CO. v. CHAMBERS et al.

24 S.E. 896

93 Va. 138

FIDELITY & CASUALTY CO.

v.CHAMBERS et al.

Supreme Conrt of Appeals of Virginia.

April 29, 1896.

Accident Insurance—Demurrer to Evidence— Motion for New Trial—Evidence—Voluntary Exposure to Danoer.

1. There is no necessity for a motion for a new trial in the trial court, in order to have a judgment on a demurrer to evidence reviewed. Railroad Co. v. Dunnaway's Adm'r, 24 S. E. (398, followed.

2. Possession of an insurance policy by the assured is such evidence of the payment of the premium as, upon a demurrer to evidence, is conclusive upon the court.

3. Where the evidence is conflicting on the issue whether deceased was intoxicated at the time of the accident which caused his death, the finding of the lower court will be sustained.

4. Where an accident policy provided that the insurer should not be liable for injuries received by the assured in consequence of "bodily infirmity, " and there was no evidence that an injury was so received, the issue whether there was such infirmity was immaterial.

5. In an action on a policy which insured against death by accident it appeared that deceased was sitting on a bag on a railroad track at a highway crossing, and near a curve; that he sat with his back to the curve, conversing with another person; that a train came suddenly around the curve, and on warning deceased started up, but, reaching to get his bag, was struck by the engine. The policy expressly pro- Tided that it did not cover injuries caused by "voluntary exposure to unnecessary danger." Held, that the act of deceased was not within the exception.

Error to circuit court, Greenesville county.

Action by Anna Lee Chambers and another, by their next friend, against the Fidelity & Casualty Company, on an accident insurance policy. From a judgment in favor of plaintiffs, defendant brings error. Affirmed.

Cabell & Cabell, for plaintiff in error.

Turnbull & Goodwin, for defendants in error.

CARDWELL, J. This is a writ of error to a judgment of the circuit court of Greenesville county upon a demurrer to the plaintiffs' evidence, the jury having ascertained the plaintiffs' damages at $2,000, the amount covered by the insurance policy sued on, and the defendant in error moves to dismiss the writ of error as improvidently awarded, upon the ground that the record does not show that there was a motion for a new trial in the court below. This is not an open question in Virginia. It was raised and determined in the case of Railroad Co. v. Dunnaway's Adm'r (decided at the present term) 24 S. E. 698, wherein it was held "that there is no necessity for a motion for a new trial in the trial court in order to have a judgment on a demurrer to evidence reviewed in this court."

It is also insisted by counsel for defendants in error that, in addition to the rule governing where there is a demurrer to plaintiff's evidence, all evidence introduced by the defendant in the court below in support of its defense based upon the ground of a violation of the conditions or restrictive provisions in the policy should not be considered, as this evidence does not first make it appear that the conditions or restrictive provisions in the policy sued on are in the print required by section 3252 of the Code or written with pen and ink in or on the policy. This section provides: "In any action against an insurance company or other insurer, founded upon a policy of insurance issued after the first day of July, 1878, no failure to perform any condition of the policy, or violation of any restrictive provision thereof, shall be a valid defence to such action, unless it appears that such condition or restrictive provision is printed in type as large or larger than that commonly known as long primer type, or is written with pen and ink in or on the policy." This presents to this court an entirely new question of great importance, which the record does not show to have been raised in the trial court; and as it has not been fully argued, and as the judgment of the lower court must be affirmed on the merits of the case, it is not necessary to decide it, and we therefore express no opinion on that question.

At the trial the plaintiffs introduced in evidence the policy of insurance sued on, and then proved by parol testimony that the insured, L. A. Kirkland, was struck and killed by a locomotive of the Atlantic & Danville Railroad on the 23d of December, 1891, and in rebuttal examined witnesses to show that the representations in the application for the insurance alleged by defendant to have been false were in fact not false, and that the accident by which the deceased lost his life was not caused by his intoxication, or the result of the use of intoxicants, or from voluntary exposure to unnecessary danger. The defendant insurance company sought by its testimony to make defense to the action upon the grounds that the insured made false representations in his application for the insurance; second, that the insurance premium on which the policy was issued had not been paid; and, third, that the insured had sustained the injury in consequence of the violation of certain conditions or restrictive provisions in the policy, or that it was caused by his intoxication, or was the result of the use of Intoxicants. By a demurrer to evidence the party demurring is considered as admitting the truth of his adversary's evidence, and all just inferences which can be drawn therefrom by the jury, and as waiving all of his own evidence which conflicts with that of his adversary, and all inferences from his own evidence (although not in conflict with his adversary's) which do not necessarily result therefrom. Johnson's Adm'r v. Railway Co. (Va.) 21 S. E. 239, and authorities cited. The plaintiffs' evidence made out their case, and we will consider the defense made by defendant, subjected to the well-established rule just stated. Was the premium paid? We are of opinion that this defense cannot avail, because of the fact that at the time of the accident the insured had in his possession the policy of insurance,...