Standard Life & Acc. Ins. Co. v. Jones

• Decision Date: 04 February 1892
• Citation: 94 Ala. 434,10 So. 530
• Court: Alabama Supreme Court
• Parties: STANDARD LIFE & ACC. INS. CO. v. JONES.

10 So. 530

94 Ala. 434

STANDARD LIFE & ACC. INS. CO. v. JONES.

Supreme Court of Alabama

February 4, 1892

Appeal from city court of Montgomery; THOMAS M. ARRINGTON, Judge.

Action by Jane Jones against the Standard Life & Accident Insurance Company upon a policy of insurance. The defendant requested the following charges, which were refused: (1) "If the jury believe from the evidence that, at the time of the injury and death of Albert, or Elbert Hutchinson, said Hutchinson was under the influence of whisky, whether intoxicated or not, then the plaintiff cannot recover." (2) "It was the duty of said Hutchinson, the person insured by the policy sued on, to exercise a greater degree of care in getting off a moving engine at night-time than is necessary by day." (3) "The policy of insurance which is the subject of this suit, does not cover any accident or injury to said Albert, or Elbert, Hutchinson happening while he was under the influence of liquor." (4) "If the jury believe from the evidence that, at the time of the accident and injury to Albert Hutchinson, he was in any way under the influence of liquor, then the plaintiff is not entitled to recover in this action, even if they should find that his being under the influence of liquor had nothing to do with causing the death of said Hutchinson." (5) "If the jury believe the evidence they must find for the defendant." There was judgment for plaintiff, and defendant appeals. Reversed.

Falkner & Jones, for appellant.

Sayre & Pearson, for appellee.

MCCLELLAN J.

This action is prosecuted by Jane Jones, appellee here, upon a contract inuring to her benefit, whereby the defendant, appellant here, insured Albert Hutchinson against death by accident. The complaint alleged the contract, in substance, and that the insured came to his death, while the policy was in force, "by external, violent, and accidental means." The policy was issued upon a written application of Hutchinson, in which is made this statement: "My habits of life are correct and temperate, and I understand and agree that the policy to be issued on this application will not cover any accidental injury which may happen to me either while under the influence of narcotics or intoxicating drinks, or in consequence of having been under the influence of either;" and in the policy itself is incorporated the following stipulation: "This insurance does not cover *** death or disablement happening to the insured while intoxicated, or in consequence of his having been under the influence of any narcotic or any intoxicating drink whatsoever." It is also an expressed condition of the policy that the insured should at all times use due care and diligence for his personal safety and protection. Upon these stipulations, the defendant interposed several special pleas, to the effect (1) that at the time of the alleged injury the insured was intoxicated; (2) that he was under the influence of whisky; (3) that said injury happened in consequence of the insured having been under the influence of whisky; and (4) that at the time in question the insured "failed to use due care and diligence for his personal safety and protection, but contributed directly and proximately to his own injury and death by getting off an engine in motion in the night-time, with his back towards the direction in which said engine was going, which was an unsafe and dangerous way of alighting from said engine." Plaintiff's demurrers to these pleas having been severally overruled, she joined issue on the first three of the series, and replied to the fourth, as follows: "To the fourth plea plaintiff says that the insured was a railroad switchman, was insured as such, and met the accident which caused his death while in the discharge of his customary duties as such switchman." The action of the trial court in overruling defendant's demurrer to this replication constitutes the subject-matter of the first assignment of error.

1. In our opinion, this action was erroneous. The stipulation set up by this fourth plea was in the nature of an exception in favor of the insurer. It was not necessary that the complaint should have negatived the facts which brought the defendant within the exception. Their existence was a matter of affirmative defense, and the onus, both of averment and proof of them, rested on the defendant. Freeman v Insurance Co., 144 Mass. 572, 12 N.E. 372; Cronkhite v. Insurance Co., 75 Wis. 116, 43 N.W. 731. This onus, so far as averment is concerned, was discharged by the interposition of the plea in question, which alleges facts involving the absence of that care and caution on the part of the insured which were, by the terms of the policy, a condition to defendant's liability. The replication to this plea does not deny that the insured failed to use due care and caution for his own safety and protection; it affirms merely that he was insured as a switchman, and that the accident which caused his death occurred while he was in the discharge of his customary duties as such. The replication assumes that the policy covers all injuries received while the insured was in the performance of the duties of his occupation, wholly regardless of the manner of such performance, as being within the exercise of due care, or in a careless and negligent manner. It assumes, in effect, that there could be but one possible mode in which the insured's customary duties might be performed, and that the adoption of that mode by him involved, of necessity, the observance of the care required by the policy for his personal safety. It proceeds on the idea that if the act being done by the assured at the time of the injury was within the scope of his employment, and one which it was his duty to perform, it is immaterial whether he used care to avoid the dangers incident to it, or was wholly wanting in respect of the exercise of diligence and prudence in conservation of his personal safety. The theory of the replication is manifestly unsound. The policy has a broad field of operation, without extending its application to injuries received in consequence of negligence on the part of the insured. The duties of a switchman, even when performed with the utmost care, are attended with many perils. The employment in itself, and without reference to additional dangers resulting from the negligence of the employe, is a hazardous one. The policy sued on was intended to cover the inherent danger of the occupation,-dangers which the exercise of due care could not eliminate from it, and not dangers which arise, not from the occupation itself, but from the negligent manner in which its duties are discharged. And while, as alleged in the replication, Hutchinson was insured as a switchman, and was injured while discharging the customary duties of that position, it may be that he was negligent in the manner of his performance of those duties; that that negligence was the cause of, or contributed to, his injury; and, of consequence, that, in admitting the truth of the replication, every fact laid in the plea might also be true, and, if true, afford a full answer to the complaint. This test demonstrates the insufficiency of the replication, and the error of the trial court in overruling the demurrer thereto. Tuttle v. Insurance Co., 134 Mass. 175, and authorities there cited; Bon v. Assurance Co., 56 Iowa, 664, 10 N.W. 225; Freeman v. Insurance Co., 144 Mass. 572, 12 N.E. 372; Tooley v....