Ry. Officials' & Emps.' Acc. Ass'n of Indianapolis v. Drummond

• Decision Date: 05 October 1898
• Court: Nebraska Supreme Court
• Parties: RAILWAY OFFICIALS' & EMPLOYEES' ACC. ASS'N OF INDIANAPOLIS, IND., v. DRUMMOND.

56 Neb. 235

76 N.W. 562

RAILWAY OFFICIALS' & EMPLOYEES' ACC. ASS'N OF INDIANAPOLIS, IND.,

v.DRUMMOND.

Supreme Court of Nebraska.

Oct. 5, 1898.

Syllabus by the Court.

1. A petition which is defective by reason of the omission of material facts therefrom will be aided and cured by the averment of such facts in the answer.

2. Generally, a plaintiff is only required to bring his case within the terms appearing on the face of the contract in suit, and need not negative conditions and exceptions indorsed thereon.

3. Where, in an action on a contract of insurance, it is claimed that death resulted from one of the excepted causes enumerated on the back of the policy, it is for the defendant to plead and prove that fact.

4. An accident, within the meaning of contracts of insurance against accidents, includes any event which takes place without the foresight or expectation of the person acted upon or affected thereby.

5. An accident insurance policy contained a clause insuring against injury “inflicted by external, violent, and accidental means,” and excepted cases where the injury “results from the intentional acts of the insured or any other person.” Death resulted from a gunshot wound inflicted by a robber. Whether the wound was accidentally or intentionally inflicted being a matter of inference from equivocal circumstances, the jury were properly instructed that the plaintiff could recover unless the shooting of the assured was the robber's intentional act.

Error to district court, Lancaster county; Hall, Judge.

Action by Susan E. Drummond against the Railway Officials' & Employees' Accident Association of Indianapolis, Ind. From a judgment for plaintiff, defendant brings error. Affirmed.Lambertson & Hall, for plaintiff in error.

Strode & Strode, for defendant in error.

SULLIVAN, J.

This was an action on a policy of accident insurance issued by the Railway Officials' & Employees' Accident Association of Indianapolis, Ind., 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 footpad or highwayman, proceeds as follows: “Defendant alleges that said certificate of membership in said Railway Officials' & Employees' 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 footpad 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. 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 St. 43;White v. Joy, 13 N. Y. 83;Kercheval v. King, 44 Mo. 401; Bliss, Code Pl. (3d Ed.) 437; 2 Boone, Code Pl. 236. In this case the petition and answer, taken together, affirmatively show every fact which plaintiff was required to plead and prove,--every fact upon which her right of recovery under the contract depended, viz.: That the policy was issued and was in force when the assured died; that his death was the result of a violent external injury; that such injury was, as to him, and within the meaning of the contract, accidental; and that the death proofs were duly furnished. In other words, when the allegation of the answer that Drummond was murdered by a highwayman is read into the petition, it is shown that the injury causing his death was not intentionally self-inflicted, but was an accident, within the settled interpretation of the agreement written on the face of the policy. The plaintiff was only required to bring her case within the terms of the policy appearing on its face. S...