National Life & Acc. Ins. Co. v. Lokey

• Decision Date: 13 January 1910
• Citation: 52 So. 45,166 Ala. 174
• Parties: NATIONAL LIFE & ACCIDENT INS. CO. v. LOKEY.
• Court: Alabama Supreme Court

52 So. 45

166 Ala. 174

NATIONAL LIFE & ACCIDENT INS. CO. v. LOKEY.

Supreme Court of Alabama

January 13, 1910

Rehearing Denied Feb. 26, 1910.

Appeal from City Court of Birmingham; Charles A. Senn, Judge.

Action by Evelyn Lokey against the National Life & Accident Insurance Company.From a judgment for plaintiff, defendant appeals.Affirmed.

Sterling A. Wood, for appellant.

Bowman Harsh & Beddow, for appellee.

SAYRE J.

It seems entirely clear to us that there was no tenable objection to the first count of the complaint.It followed the form laid down in the Code as for an action on a policy of life insurance, and stated a cause of action.Insurance Company v. Bledsoe,52 Ala. 538.If the evidence developed a case arising on a policy of accident insurance, that raised a question, we hardly need to say, to be reached otherwise than by demurrer.Nor does counsel for appellant contend for anything different.The contention in the brief is that there was error in that action of the court by which it allowed the policy to be put in evidence notwithstanding defendant's objection because it tended to establish a case at variance with that stated in count 1.The effort to state in the Code form an action on a policy of accident insurance proceeded, as we think, upon a misapprehension of the proper office of that form.A policy which insures against death resulting directly and independently of all other causes from bodily injuries effected through external, violent, and accidental means though in a sense a policy of life insurance, is not the sort of policy contemplated in form 12 of section 5382 of the Code, nor does it evidence the character of contract men have in mind when they speak of life insurance.But the second count of the complaint states an action on a policy of accident insurance--how defectively we will not say, because its defects are not urged in brief of counsel--and under this count the policy offered was admissible in evidence.The court at the time of its introduction might have appropriately limited the effect of the policy as tending to sustain only the second count; but exactly this the court was not asked to do, and, whether so or not, it cannot be said that there was error in its refusal to do so, for the reason that the correct method of securing its rights in this connection by a charge limiting the effect of the evidence remained open to the defendant.

The same considerations are to be applied with the same result to that assignment of error in which the appellant affirms error of the lower court in overruling its motion to exclude the policy in so far as the first count was concerned.

Plea 12 set up a clause of the policy in which it was stipulated that in the event of fatal injury from exposure to obvious risk of injury or known danger the defendant company should not be liable, and alleges that the death of the insured "did result from external, violent, or accidental means, and was the proximate result of the exposure by the said Mrs. Julia Reese[the insured] of herself to the obvious risk or danger, in this: That she attempted to and did step or jump or alight from a moving car, and that her said death resulted proximately therefrom."In argument stress is laid upon the fact that the exposure to danger provided for in the exception quoted is not described as voluntary, and thus the conclusion is reached by way of the exception that a merely negligent exposure of himself to danger by the insured will relieve the insurer of liability.There seems to have been some conflict of opinion as to whether contributory negligence constitutes a defense to an action on the policy where the contract is general, insuring against accident occurring by external violence without any exception of the character under consideration.Shevlin v. American Mut. Acc. Ass'n,94 Wis. 180, 68 N.W. 866, 36 L. R. A. 52.In that case it is stated that the great weight of authority favors the conclusion that an injury may be said to be accidental, though attributable to the negligence of the insured.That inquiry, however, is excluded from this case by the provision of the policy in hand.Here the exception prevents liability in the event of exposure to obvious risk or known danger, meaning, as we apprehend, that the danger must meet the insured so squarely in front that he cannot in reason be heard to deny knowledge of it, or that it was in fact known; implying in either case an exposure to a danger that the insured knows and is conscious of at the time.Every policy of insurance, if doubtful, is construed in favor of the insured.We think it cannot in reason be said that the exception in question was intended to relieve the insurer of responsibility in the event the insured is involuntarily exposed to danger and suffers injury thereby.That would be contrary to the entire tenor of the contract.It follows, it would seem, that the addition of the word "voluntary," as descriptive of the insured's exposure, would add nothing to the meaning of the exception.The language used implies as much.It has been held by other courts in a number of cases that mere negligence on the part of the insured does not constitute a voluntary exposure, and that the negligence of the insured, to bring his acts within an exception of voluntary exposure to danger, must be accompanied with knowledge of the existence of danger, or knowledge that injury is likely to result from his acts.4 Cooley's Briefs, 3216.

But let it be assumed that the exception here relieved defendant of liability on "exposure to obvious danger," and that "exposure to obvious danger" means something less than voluntary exposure to obvious danger.How does the case stand?In Tuttle v. Travelers' Ins. Co.,134 Mass. 175, 45 Am. Rep. 316, the language of the exception was "exposure to obvious or unnecessary danger."The court applied the general principles of the law of negligence.So in Smith v. Preferred Mut. Acc. Ass'n,104 Mich. 634, 62 N.W. 990, Traveler's Ins. Co. v. Jones,80 Ga. 541, 7 S.E. 83, 12 Am. St. Rep. 270, andSmith v. Ætna Ins. Co., 115 Iowa, 217, 88 N.W. 368, 56 L. R. A. 271, 91 Am. St. Rep. 153.In Shevlin v. American Mut. Acc. Ass'n,94 Wis. 180, 68 N.W. 866, 36 L. R. A. 52, the exception was: "Any injury resulting in whole or in part from exposure to unnecessary danger."The court said: "It plainly includes all cases of exposure to unnecessary danger, in which such exposure is attributable to negligence on the part of the assured; that is, the exception was intended to hold the insured responsible for the exercise of ordinary care, and to except from the provisions of the policy all cases of injury occurring in whole or in part through a failure to exercise such care.Under such a provision no recovery can be had if the injury is caused by reason of exposure to unnecessary danger, within the general principles of the law of negligence."The meaning, then, of the plea, is that there is obvious risk or danger in stepping, or jumping, or alighting from a moving car, without reference to the speed at which the car may be moving, and that in doing so the insured was guilty of negligence.The averment is, not that the car was moving at a rate of speed obviously dangerous, but in effect that it was obviously dangerous to step from a car moving at any speed whatever; for this, at least, is obvious: That proof that the car was moving at a snail's pace would sustain the plea, as well as proof that it was moving at express speed.Exceptional circumstances may attend an attempt to alight from a moving car, which will justify the court in declaring as matter of law that the attempt was obviously dangerous, as, for example, the car may be moving at a great rate of speed, or the person alighting may be old or infirm, or incumbered with bundles or children.Watkins v. Birmingham Railway Co.,120 Ala. 147, 24 So. 392, 43 L. R. A. 297.But no such facts are alleged here.We

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