Standard Life & Accident Ins. Co. v. Koen

• Decision Date: 25 October 1895
• Citation: 33 S.W. 133
• Parties: STANDARD LIFE & ACCIDENT INS. CO. v. KOEN.
• Court: Texas Court of Appeals

33 S.W. 133

STANDARD LIFE & ACCIDENT INS. CO. v. KOEN.

Court of Civil Appeals of Texas.

October 25, 1895.

Appeal from district court, Comanche county; T. H. Conner, Judge.

Action by Barbara A. Koen against the Standard Life & Accident Insurance Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Oeland & Smith, for appellant. Lindsey & Goodson, for appellee.

Statement of the Case, with Conclusions of Fact.

TARLTON, C. J.

This appeal is from a judgment in the sum of $2,000, recovered by the appellee against the appellant upon a policy of accident insurance dated April 17, 1893.

His honor filed, in substance, the following conclusions of fact, which are adopted by this court: (1) On April 17, 1893, the defendant company, acting through its duly-authorized agent, and for a valuable consideration accepted by it, issued and delivered to Wade A. Bledsoe, for the use and benefit of his mother, Mrs. Barbara A. Koen, the plaintiff, its policy of insurance. By this instrument it insured Wade A. Bledsoe against loss of time or death by external, violent, and accidental means, and thereby agreed to pay Barbara A. Koen, the plaintiff, the sum of $2,000, in the event the death of Bledsoe should occur by the means stated. (2) At the time of the issuance of the policy, Wade A. Bledsoe made written application therefor, in which, among other things, he classed himself as an extra conductor in the employ of the Texas Central Railway Company, and in which appear the following provisions, to wit: "I understand the classifications of risks, and agree, if I should engage in any occupation or work rated by the company as more hazardous than the class herein agreed to, that my insurance, weekly indemnity, or specific indemnity shall be limited to the sum which the premium paid by me will purchase, at the rate fixed by the company for such increased hazard." The policy had the following provision on this point: "Or if death shall result from such injuries alone within ninety days, will pay the principal sum of $2,000 to Mrs. Barbara A. Koen, except that, if the insured is injured in any occupation or exposure classed by this company as more hazardous than that stated in said application, the insurance, weekly indemnity, or specific indemnity shall be only for such sum as the premiums paid will purchase, at the rate fixed by said company for such increased hazard." (3) At the date and time of the making of said application, and of the issuance of the policy, the fact was that Wade A. Bledsoe was an extra conductor on freight trains of the Texas Central Railway, and that part of the application of Bledsoe was true. (4) By the rules of the defendant company, the occupation of a conductor was classed as "XH" (extra hazardous), and the occupation of a freight brakeman was classed as more hazardous than that of conductor. The limit of insurance permitted in occupations classed "XH," as conductor, was $2,000, and the limit in the occupation of a freight brakeman was $350, all of which was understood by Wade A. Bledsoe. (5) An "extra conductor," in railway parlance, means one who has so advanced in the line of promotion as to be intrusted and called upon to take out and run trains as conductor when, for any reasons, the regular conductor cannot do so, or where there is some special train for which there is no conductor, until a vacancy in the list of regular conductors occurs, when such extra conductor then becomes a regular conductor. Until the final promotion to the position of a regular conductor, an extra conductor may and does engage in any other service required by his company, such as braking on trains, shoveling coal, or, in fact, anything else in railway service required of him by his superiors; and it does not appear in evidence that there is any rule or custom by which an extra conductor loses his classification as such merely because, for any given number of days or times, he may be engaged in some railway service other than conducting trains; nor does it appear that the classification of extra conductor is dependent on the number of times per week or month that he is called upon to take out a train. (6) The custom, rules, and service of extra freight conductors, as above stated, were well known to the agent of the defendant company at the time he received the application and issued the policy of insurance to Wade A. Bledsoe, and it inferentially appears that the general manager of the company must also have known the particulars of such classification, for the agent issuing the policy testified that, some time prior to the issuance thereof, he had had some correspondence (just how much and what was not developed) with the general manager as to the classification of an extra conductor, and that the word "extra" had been put before "conductor," in order that the company might know that the applicant was not a regular conductor. (7) On April 28, 1893, Wade A. Bledsoe went west to Cisco on a freight train as a brakeman, arriving there in the evening, Cisco being the end of the trip, as far as required of Bledsoe. Some time after his arrival, during the evening, and while in no way connected with or engaged in the occupation of a freight brakeman, or in any employment connected with the railway service, Bledsoe was, by external, violent, and accidental means, instantly killed. The proof fails to show just how many trips, between the 17th of April and the 28th of April, 1893, Wade A. Bledsoe made as freight brakeman or as an extra conductor.

Upon the foregoing conclusions of fact, his honor founded the conclusion of law that "it does not sufficiently appear that Wade A. Bledsoe, within the meaning of the terms as explained, had lost his right to the classification as an extra conductor, or that he was not an extra conductor at the time of his death." Further, "that he was not killed or injured in any occupation or exposure more hazardous than that in which he was classed in the policy; in other words, it being true that Bledsoe was in fact an extra conductor at the time the policy was issued to him, he was not injured while engaged in more hazardous employment, whatever he may have been doing between the two dates."

Conclusions of Law.

Under assignments urging error on the part of the court in overruling a general demurrer to the petition and certain enumerated special exceptions, the appellant relies upon propositions which we dispose of as follows:

1. We do not hold, with the appellant, that there is any variance between the allegations of the plaintiff's petition and the terms set forth in the policy, which is made an exhibit to the petition. Indeed, the recitals of the policy, from the...