Little v. Iowa State Traveling Men's Ass'n
| Decision Date | 14 March 1912 |
| Citation | 154 Iowa 440,134 N.W. 1087 |
| Parties | LITTLE v. IOWA STATE TRAVELING MEN'S ASS'N. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Story County; C. G. Lee, Judge.
Action at law upon a policy of life insurance. There was a verdict and judgment for the defendant, and plaintiff appeals. Affirmed.McCarthy & Luke, for appellant.
Sullivan & Sullivan and Edward M. McCall, for appellee.
On June 16, 1910, at Davenport, Iowa, one Myron E. Ellett was struck and killed by a moving railway train. At the time of his said decease he held a certificate or policy of insurance in the defendant association, by the terms of which if said insured while in good standing as a member of said association should through external violent and accidental means receive bodily injuries which, independently of all other causes, should result in death within 90 days from said accident, then his beneficiary, Garnet Ellett, should be paid a certain benefit or indemnity to be derived in the method and manner therein stipulated. Provisions were also made therein concerning notice of accident and proofs of death, which matters are not of material moment in the determination of this appeal. Notice of said Ellett's death was duly given to the association, which, after investigation, determined that the accident took place under circumstances relieving it from all liability on the policy, and, refusing payment, this action was begun to enforce collection of the claim.
The defense is to the effect that by the terms of the contract of insurance it was agreed the association should be under no liability for any benefit or indemnity on account of any accident occurring to said insured while in any degree under the influence of intoxicating liquors or narcotics, or which might happen on account or by reason or in consequence of the use thereof; nor should there be any liability for accident or injury to the insured brought about or occasioned by his voluntary exposure to obvious danger, and it is alleged by the defendant that the death of the insured resulted from and was caused by the fact that he was then under the influence of intoxicating liquors and by his voluntary exposure to open and obvious danger. These issues having been submitted to the jury, and a verdict returned thereon for the defendant, the judgment so rendered cannot be disturbed on appeal except for insufficiency of evidence to sustain it, or for prejudicial error in the rulings of the trial court. It is the position of the appellant that a reversal is required upon both grounds.
[1] 1. We give first attention to the sufficiency of the evidence. The record tends to show that on June 15, 1910, Ellett, the deceased, with one Hull left Des Moines, and went to the city of Davenport. Just how that trip was made is not entirely clear, but it is inferable that they stole the ride there upon a freight train, arriving in Davenport about 8 o'clock on the morning of June 16th. If they had any business errand in that city, it is not disclosed. During the forenoon they went across the river to Rock Island, and later returned to Davenport. Hull testifies that while in Rock Island they drank three glasses of beer each, and in Davenport three more; the last having been taken between 1 and 2 o'clock in the afternoon. In the course of their rounds Ellett bought a bottle of whisky, though Hull asserts that no part of it had been consumed by either of them at the time of the accident. After drinking the beer last mentioned, they bathed in the river, and then returned to the track of the Chicago, Rock Island & Pacific Railway for the purpose of catching a train back to Des Moines. This they proposed to accomplish by taking their station at a point where, on account of a steep grade, west-bound freight trains usually ran sufficiently slow to enable them to board the cars while in motion. This, Hull says, was about 3 o'clock in the afternoon. Having reached what they believed to be a favorable place for their purpose, they sat down or lay down on the ends of the ties on the south side of the track to wait the coming of a train. Remaining there for a time keeping a lookout for trains, they fell asleep. About 5 o'clock a train moving eastward down the grade struck them both, killing Ellett and injuring Hull. The engineer and firemen of the train which struck them say that, when they discovered these persons immediately before the collision, they were lying with their heads on the south rail and motionless. An empty bottle was found near at hand by persons visiting the scene of the accident.
The station agent nearest the place testifies that he saw the men a little after 3 o'clock, and that they showed signs of intoxication. If we understand counsel correctly, they argue that the evidence that deceased drank six glasses of beer between 8 o'clock in the morning and half past 1 in the afternoon, or that he was seen at 3 o'clock under the apparent influence of intoxicants, is insufficient to justify a finding that deceased was in such condition at the time of the accident. Even if this were all which the record discloses, we should hardly be justified in holding as a matter of law that the deceased was not or could not have been intoxicated when killed, and much less could we say that such finding by the jury has nothing in the record to support it. Although Hull swears that six glasses of beer each was the limit of their libations on that unfortunate day, the jury were not bound to believe the literal truth of that statement. A party of men who begin the morning with visits to the saloons, and keep it up at intervals until afternoon, are not apt to carry in mind a very accurately itemized account of their drinks, and, if within one, two, or three hours after a circuit of that kind they go out and sit down or lie down or fall asleep on a railway track where trains are liable to be passing at any moment, the conclusion that they are intoxicated is so nearly irresistible that a finding to the contrary would border on the ludicrous.
It may be true, as counsel suggest, that these men, having been without rest for a considerable period, were exhausted, and therefore the more readily gave way to the inclination to sleep, but that aspect of the case was doubtless argued to the jury, and found by them insufficient to reconcile the act of the deceased with a condition of sobriety or make that act any the less a reckless and voluntary exposure to a danger so imminent and obvious that a person whose faculties were not obfuscated by something more potent than mere weariness would have recognized and avoided...
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