Railway officials & Employes Accident Association of Indianapolis v. Drummond

• Decision Date: 05 October 1898
• Docket Number: 8331
• Citation: 76 N.W. 562,56 Neb. 235
• Parties: RAILWAY OFFICIALS & EMPLOYES ACCIDENT ASSOCIATION OF INDIANAPOLIS, INDIANA, v. SUSAN E. DRUMMOND
• Court: Nebraska Supreme Court

76 N.W. 562

56 Neb. 235

RAILWAY OFFICIALS & EMPLOYES ACCIDENT ASSOCIATION OF INDIANAPOLIS, INDIANA, v. SUSAN E. DRUMMOND

No. 8331

Supreme Court of Nebraska

October 5, 1898

ERROR from the district court of Lancaster county. Tried below before HALL, J. Affirmed.

AFFIRMED.

Lambertson & Hall, for plaintiff in error:

The petition having omitted to allege that the death of the insured was due to injuries inflicted by external, violent and accidental means, fails to state a cause of action. (De Graw v. National Accident Society, 51 Hun [N Y.] 142; Newman v. Railway Officials & Employes Accident Ass'n, 42 N.E. 650 [Ind.]; Hale v. Missouri P R. Co., 36 Neb. 266; Luce v. Foster, 42 Neb. 818; Omaha Consolidated Vinegar Co. v. Burns, 44 Neb. 21; Traver v. Shaefle, 33 Neb. 531; Imhoff v. House, 36 Neb. 28.)

The motion of defendant at the close of plaintiff's testimony for a nonsuit, and the request of defendant for an instruction to the jury directing a verdict for the defendant, should have been granted. (Chicago, B. & Q. R. Co. v. Landauer, 36 Neb. 643.)

Where a man is waylaid and shot down without warning by a foot-pad, even though the injury was unexpected, unforeseen, and unprovoked by the assured, the beneficiary cannot recover under the terms of the policy, which provides that the contract shall not cover injury or death due to the intentional act of the assured or any other person. (Travellers Ins. Co. v. McConkey, 127 U.S. 661; Hutchcraft v. Travelers Ins. Co., 8 S.W. [Ky.] 570; American Accident Co. v. Carson, 30 S.W. 879; Travelers Ins. Co. v. McCarthy, 25 P. 713 [Colo.]; Fischer v. Travelers Ins. Co., 19 P. 425 [Cal.]; Butero v. Travelers Accident Ins. Co., 71 N.W. 811 [Wis.]; Johnson v. Travelers Ins. Co., 39 S.W. 972; Standard Life & Accident Ins. Co. v. Askew, 32 S.W. 31; Phelan v. Travelers Ins. Co., 38 Mo.App. 640; De Graw v. National Accident Society, 51 Hun [N. Y.] 142; Railway Officials & Employes Accident Ass'n v. McCabe, 61 Ill.App. 565; Newman v. Railway Officials & Employes Accident Ass'n, 42 N.E. 650 [Ind.].)

There was error in instructions informing the jury that the shooting of Drummond was an accident as far as he was concerned, and which directed the jury to return a verdict for plaintiff unless they found the killing was intentional. (United States Mutual Accident Ass'n v. Barry, 131 U.S. 100; Newman v. Railway Officials & Employes Accident Ass'n, 42 N.E. 650 [Ind.].)

Strode & Strode, contra:

The court looks alone to the intention or design of the person injured, and if to him the injury was unforeseen and unexpected, it is within the definition of an accident. (Paul v. Travelers Ins. Co., 112 N.Y. 472; Richards v. Travelers Ins. Co., 89 Cal. 170; Ripley v. Railway Passengers Assurance Co., 2 Bigelow, L. & A. Ins. Cases [Mich.] 738; American Accident Co. of Louisville v. Carson, 99 Ky. 441; Supreme Council of Order of Chosen Friends v. Garrigus, 104 Ind. 133.)

Accident will be presumed from injury or death. (Jones v. United States Mutual Accident Ass'n, 61 N.W. 485 [Ia.]; Utter v. Travelers Ins. Co., 65 Mich. 545; Richards v. Travelers Ins. Co., 89 Cal. 170; Cronkhite v. Travelers Ins. Co., 75 Wis. 116; Travellers Ins. Co. v. McConkey, 127 (U.S.) 661; Warner v. United States Mutual Accident Ass'n, 8 Utah 435; Robinson v. United States Mutual Accident Ass'n, 68 F. 825; Guldenkirch v. United States Mutual Accident Ass'n, 5 N.Y.S. 428.)

Accident being presumed death resulting from an accident imports an external and violent agency. (Paul v. Travelers Ins. Co., 112 N.Y. 479; McGlinchey v. Fidelity & Casualty Co., 80 Me. 251; Eggenberger v. Guarantee Mutual Accident Ass'n, 41 F. 172; Healey v. Mutual Accident Ass'n, 133 Ill. 556; Mallory v. Travelers Ins. Co., 47 N.Y. 52; Tucker v. Mutual Benefit Life Co., 50 Hun [N. Y.] 53; United States Mutual Accident Ass'n v. Newman, 84 Va. 52.)

The answer cures alleged defects in plaintiff's petition. (Haggard v. Wallen, 6 Neb. 271.)

Plaintiff's petition is not defective in failing to charge that assured was not intentionally shot and killed by a third person. (Cronkhite v. Travelers Ins. Co., 75 Wis. 116; Anthony v. Mercantile Mutual Accident Ass'n, 162 Mass. 354; Meadows v. Pacific Mutual Life Ins. Co., 50 Am. St. Rep. [Mo.] 427; Redman v. AEtna Ins. Co., 49 Wis. 435; Farmers & Merchants Ins. Co. v. Peterson, 47 Neb. 747; Conboy v. Railway Officials & Employes Accident Ass'n, 60 Am. St. Rep. [Ind.] 156; Follis v. United States Mutual Accident Ass'n, 58 Am. St. Rep. [Ia.] 408.)

Exceptions in insurance policies are matters of defense to be pleaded and proved by insurer. (Standard Life & Accident Ins. Co. v. Jones, 94 Ala. 434; Freeman v. Travelers Ins. Co., 144 Mass. 572; Badenfield v. Massachusetts Mutual Accident Ass'n, 154 Mass. 77; Railway Passenger Assurance Co. v. Burwell, 44 Ind. 460; National Benefit Ass'n v. Bowman, 110 Ind. 355; Sutherland v. Standard Life & Accident Ins. Co., 87 Ia. 505; Couadean v. American Accident Co., 95 Ky. 280; Guldenkirch v. United States Mutual Accident Ass'n, 5 N.Y.S. 428; Dougherty v. Pacific Mutual Life Ins. Co., 154 Pa. St. 385; Jones v. United States Mutual Accident Ass'n, 61 N.W. 485 [Ia.]; Travelers Ins. Co. v. Nitterhouse, 38 N.E. 110 [Ind.]; Home Benefit Ass'n v. Sargent, 142 U.S. 691.)

Assured's death was due to external, violent, and accidental means. (American Accident Co. v. Carson, 99 Ky. 441; Richards v. Travelers Ins. Co., 89 Cal. 170; Lovelace v. Travelers Protective Ass'n, 126 Mo. 140; Robinson v. United States Mutual Accident Ass'n, 68 F. 625; Fidelity & Casualty Co. v. Johnson, 72 Miss. 333; Jones v. United States Mutual Accident Ass'n, 61 N.W. 485 [Ia.].)

OPINION

The opinion contains a statement of the case.

SULLIVAN, J.

This was an action on a policy of accident insurance issued by the Railway Officials & Employes Accident Association of Indianapolis, Indiana, to Elmer E. Drummond, insuring him against bodily injuries inflicted by "external, violent and accidental means." The plaintiff, Susan E. Drummond, was the mother of the assured, and the beneficiary named in the contract. A trial to a jury in the district court of Lancaster county resulted in a verdict and judgment for the plaintiff. The defendant prosecutes error to this court.

The petition alleges the corporate character of the insurance company, the issuance of the policy, the death of the assured while the policy was in force, and the furnishing of proofs of death in accordance with the requirements of the contract. The allegation in regard to the death of Drummond is that, while riding along the public road near the city of Holdrege, he was shot and killed by an unknown person. There is no direct averment that death resulted from an accident, and the petition does not disclose the fact that, by the express terms of the contract, written on the face thereof, the right of recovery was made to depend upon the injury being accidental. The cause of action was stated as though it had arisen on an ordinary life policy. The defendant, however, made no objection to either the form or substance of the pleading, but filed an answer thereto, which, after admitting the issuance of the policy, denying the sufficiency of the proofs of death, and alleging that Drummond was murdered by a foot-pad or highwayman, proceeds as follows: "Defendant alleges that said certificate of membership in said Railway Officials & Employes Accident Association and said policy of insurance provided, among other things, as follows: That 'the defendant shall not be liable for injuries resulting from the intentional acts of the insured, or any other person, or death resulting from such acts, whether the insured or such other person be sane or insane (injuries inflicted by burglars excepted), or injuries or death while in or at any place or assembly prohibited by law.' Defendant alleges that the deceased, Elmer E. Drummond, came to his death at the hands of some person unknown to this defendant, but which this defendant states upon information and belief to have been a foot-pad or highwayman, and that said Elmer E. Drummond came to his death and was intentionally shot and killed while he was at a place prohibited by law, to-wit, a brothel or house of ill-fame in the town of Holdrege, and that said injuries or death occurred at said place and in consequence of his being there and by reason of his being engaged in an unlawful act, by reason whereof said policy of insurance is void, and the said defendant is not liable thereon, or on said certificate of membership in said defendant association." The plaintiff replied traversing the new matter pleaded by the defendant. At the trial the policy was received in evidence without objection, and among a large number of conditions printed on its back appears the provision set out in the answer.

The first argument of the defendant is that the judgment is erroneous because the petition does not state a cause of action on the policy. This contention cannot be sustained. According to a familiar rule of pleading, the deficiencies of the petition may be, and often are, supplied by the averments of the answer. "When the defendant chooses," says Parker, C. J., in Slack v. Lyon, 9 Pick. [Mass.] 62 "to understand the plaintiff's count to contain all the facts essential to his liability, and, in his plea, sets out and answers those which have been omitted in the count, so that the parties go to trial upon a full knowledge of the charge, and the record contains enough to show the court that all the material facts were in issue, the defendant shall not tread back and trip up the heels of the plaintiff on a defect which he would seem thus purposely to have omitted to notice in the outset of the controversy." To the same effect are Erwin v. Shaffer, 9 Ohio...