Jamison v. Continental Casualty Co.

• Decision Date: 02 February 1904
• Citation: 104 Mo. App. 306,78 S.W. 812
• Parties: JAMISON v. CONTINENTAL CASUALTY CO.
• Court: Missouri Court of Appeals

78 S.W. 812

104 Mo. App. 306

JAMISON v. CONTINENTAL CASUALTY CO.

Court of Appeals at St. Louis, Missouri.

February 2, 1904.

ACCIDENT INSURANCE — POLICY — CONSTRUCTION —LIMITED LIABILITY CLAUSE—OBVIOUS DANGERS—UNNECESSARY EXPOSURE — BURDEN OF PROOF—EVIDENCE—DECLARATIONS OF INSURED—WEIGHT.

1. Where, in an action on an accident policy, the petition alleged that, on the day mentioned, insured sustained personal bodily injuries through external, violent, and purely accidental causes within the policy, which injuries solely caused his death within two days after the accident, in that, while he was employed as a railroad bridgeman, he was struck on the head with some hard substance, inflicting a mortal wound, from which he died, but that plaintiff could not give a more particular description of the circumstances of the accident, because they were to him unknown, the petition was not objectionable for failure to allege that the mortal wound was received by accident, in that plaintiff disclaimed knowledge of how it was caused.

2. Where an accident policy insured deceased in the maximum indemnity if death resulted from a hazard incident to his duties as a railroad bridgeman, a subsequent clause providing that the company should not be liable for more than $100 in case insured lost his life from unnecessary exposure to danger or to obvious

risks did not apply to a death from a "casualty to which insured was exposed" in the performance of his duties as a bridgeman.

3. In an action on an accident policy providing for a limited indemnity in case insured lost his life from unnecessary exposure to danger or to obvious risk of injury, the burden of proof that insured met death in such a manner as to bring such clause into operation was on the defendant.

4. Deceased was stationed at a particular bridge to flag trains approaching the same. He went there with his lantern on a particular night, and the next morning his body was found a short distance from the railroad track. Blood stains could be traced from there to the track, and deceased's hat was found on the track cut in two. When found, and just before his death, while in a semiconscious condition, deceased stated, in answer to suggestive questions, after they were repeated to him, that he had been struck by a train while asleep. Held, that such facts did not establish, as a matter of law, that deceased met his death by unnecessary exposure to danger, within the terms of an accident policy limiting the indemnity under such circumstances to $100.

5. Where, after deceased had been found lying near a railroad track in a semiconscious condition, he stated, in answer to suggestive questions, which had to be repeated to him before he answered, merely by saying, "Yes," that he had been hit by a train, and had been asleep, and that he did not know how he happened to go to sleep, and shortly thereafter he died from wounds received from a supposed collision with a train, deceased's statements under such circumstances were not entitled to weight in determining whether he unnecessarily exposed himself to danger, within the terms of an accident policy.

Appeal from Circuit Court, Texas County; L. B. Woodside, Judge.

Action by George H. Jamison against the Continental Casualty Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

L. D. Grover, for appellant. Lamar, Barton & Lamar, for respondent.

GOODE, J.

The plaintiff sued an accident insurance company, on a policy of insurance, to recover $1,000. The policy was taken by Oscar Jamison in favor of his father, the plaintiff. The contract contained, among other things, a stipulation that the company would pay to the plaintiff $1,000 if the insured, during the life of the policy, should meet death by external, violent, and purely accidental means. The deceased was employed by the Gulf, Colorado & Santa Fé Railroad Company, and was killed, presumably, by being struck by a train. He was a bridge carpenter, but had been detailed to flag trains and see that their speed was reduced to four miles an hour before they passed over the company's bridge No. 266. At 6 o'clock in the evening of April 15, 1902, he left Sanger, a station on the railroad in the state of Texas, with orders to go to the bridge and flag all trains that came along. He was not seen again until the next morning, and was then found lying about 50 feet from the west side of the bridge, and 20 feet south of it. He had a large wound in the back of his head, and bruises on the left side of it, and on his right leg between the hip and the knee. There was evidence to show he had tottered to that spot after being struck by the train. Blood was detected on the ties near the bridge, and footprints and blood stains were traced from the track to where he lay. His lantern was near the ties, and his hat on the track, cut in two. The answer, besides a general denial, pleaded that the deceased was sent to the bridge to flag trains, which duty required him to keep awake, and to stand on the east side of the bridge, but that he unnecessarily exposed himself to danger, and to obvious risk of injury, by going to sleep on the track, or so near the track as to be struck by a passing train.

1. The point is made against the petition that it does not state that the mortal wound was received by accident, but, on the contrary, disclaims any knowledge of how it was caused. The petition states that on the day mentioned the "insured sustained personal, bodily injuries, through external, violent, and purely accidental causes, within the terms of said policy, which injuries, solely and independently of all other causes, resulted in the death of said Oscar Jamison within ninety days of the accident, to wit, within two days thereof, in that, while he was employed as a bridgeman, as aforesaid, he was struck upon the head with some hard substance, inflicting a mortal wound, from which he, Oscar Jamison, died on the ____ day of April, 1902." That language is precise and full enough to constitute a good averment that the insured met death by an "external, violent, and purely accidental cause." The only basis for the attack on the petition is this sentence following the above allegation: "A more particular description of the circumstances of said accident cannot here be given, because they are to the plaintiff unknown." The petition avers a mortal wound in the head, accidentally received, caused the death of the insured, and ought not to be held insufficient because it goes further, and states that the pleader was ignorant of the circumstances of the tragedy. The pleading was proof against an attack before verdict. But none was made until after verdict, when the petition is to be more generously regarded, and no requirement imposed, except that it must be inferable from its express averments that the deceased was killed by accidental violence. Munchow v. Munchow, 96 Mo. App. 553, 70 S. W. 386. Unquestionably, enough is stated to justify that inference, if, indeed, the fact is not positively alleged, and we think it is alleged.

2. The principal defense rests on a term of the policy which stipulated that the amount to be paid if the insured lost his life, or received any of certain designated injuries, "from unnecessary exposure to danger or to obvious risk of injury," should be $100. The casualty company tendered that sum, and contends that thereby it fully discharged its liability, as the evidence conclusively established that the deceased was killed from exposing himself to unnecessary danger, and to a risk which was obvious. This contention raises these questions: What is the meaning of the term of the policy invoked as a defense? Is the inference inevitable from the evidence that the deceased came to his death under circumstances that make said term control the company's liability? It was not the intention of the parties to the contract of insurance to exempt the company from payment of the maximum indemnity—$1,000- if death resulted from a hazard incident to the duties of the insured as a bridgeman. This appears from the first clause of the policy, which says the insured "is entitled to indemnity on the basis of his liability to accident in the occupation of bridgeman, in the event of personal, bodily injuries." By virtue of that provision, all casualties to which the insured was exposed in the performance of the duties of a perilous avocation plainly came within the scope of the agreement to pay the full indemnity in case of accidental death.

The first point of doubt is as to what sort of negligence on the part of the insured, contributing to his death, would entitle the company to pay the minimum liability, and whether merely inadvertent conduct would be sufficient to do so, or only a conscious incurring of needless risk. Apart from the adjudications on the question, I should be inclined to the opinion that, as a main purpose in taking a policy of accident insurance is to procure indemnity against the consequences of the insured party's carelessness and oversights, a stipulation against "exposure to unnecessary danger or to obvious risk of injury," excludes from the force of the policy accidents occasioned by that positive sort of negligence which in personal injury litigation falls within the doctrine of assumed risk, and consists of knowledge of a danger, and willingness to encounter it, but does not exclude such as happen from the mere failure of the insured to shun a danger unknown to him, which might have been known by due care, or what is denominated "contributory negligence." This view would require, to bring into operation the minimum indemnity clause of the policy, volition on the part of the insured in needlessly exposing himself to danger as in cases where the word "voluntary" is used. It seems to me, the intention of the contract implies liability for an accident unless there was a voluntary assumption of unnecessary risk—an assumption of the risk not, of...