Life & Cas. Ins. Co. of Tennessee v. Tollison, 8 Div. 263.

• Decision Date: 21 May 1931
• Docket Number: 8 Div. 263.
• Citation: 134 So. 805,223 Ala. 78
• Parties: LIFE & CASUALTY INS. CO. OF TENNESSEE v. TOLLISON.
• Court: Alabama Supreme Court

134 So. 805

223 Ala. 78

LIFE & CASUALTY INS. CO. OF TENNESSEE v. TOLLISON.

8 Div. 263.

Supreme Court of Alabama

May 21, 1931

Appeal from Circuit Court, Colbert County; J. Fred Johnson, Jr. Judge.

Action on a policy of accident insurance by Emmet W. Tollison against the Life & Casualty Insurance Company of Tennessee. From a judgment for plaintiff, defendant appeals.

Affirmed.

P. M Estes and Moreau P. Estes, both of Nashville, Tenn., and R M. Sims and A. A. Williams, both of Florence, for appellant.

Andrews, Peach & Almon, of Sheffield, for appellee.

BOULDIN J.

The suit is on an accident insurance policy to recover the stipulated benefit for loss of one hand and one foot.

The contract is a limited one known as a "Travel and Pedestrian Policy." Its pertinent provisions appear in the report of the case.

The claim here involved is under the clause extending protection to "truck drivers *** when engaged in the line of their employment, in actually driving or operating a public conveyance."

The evidence for plaintiff, the insured, tended to show that, while driving a motortruck, a public conveyance, in the line of his employment, on a public highway in the nighttime, and while passing over a public railroad crossing, he discovered the near approach of a train on a curve; that a collision appearing imminent, plaintiff leaped or attempted to leap from the truck. The train struck and demolished the truck. A few moments later nearby parties found plaintiff, probably unconscious or just recovering consciousness, lying by the side of the railroad track with his right foot severed and his left hand crushed so as to require amputation.

The chief controversy in the case arises from his position when found with reference to the point of collision. Measured later from data given by a witness on the ground at the time, this position was eighteen feet from the margin of the traveled highway in the direction from which the train approached, or some twenty-six feet from the supposed position of the truck when struck by the locomotive. Some variance appears in estimated distances by different witnesses; but for the purposes of this decision we accept the above as substantially correct.

The contention of appellant is that this physical fact, established without dispute, or by such preponderance of evidence as to call for a new trial if disregarded, shows the plaintiff had severed his relation as an "actual" driver of the truck at the time of the collision, and his injury could not have resulted from the collision within the meaning of this policy.

If the physical facts demonstrated as a certainty that the insured had got out of the truck, abandoned its driving, and by self-controlled movement walked in the direction of the approaching train and was run over, the loss would not be within the coverage of this policy.

The plaintiff disclaims any conscious knowledge of what occurred after he jumped until he recovered consciousness about the time others found him. He cannot and does not say he was still in contact with the truck at the instant of the crash and hence cannot say he was thrown into a position resulting in the loss of his limbs. An eyewitness testifies he saw him jump as the crash came, cannot say whether...