Travelers' Ins. Co. v. Harris

• Decision Date: 11 June 1919
• Docket Number: (No. 85-2886.)
• Citation: 212 S.W. 933
• Parties: TRAVELERS' INS. CO. v. HARRIS.
• Court: Texas Supreme Court

212 S.W. 933

TRAVELERS' INS. CO. v. HARRIS.

(No. 85-2886.)

Commission of Appeals of Texas, Section B.

June 11, 1919.

Error to Court of Civil Appeals of Sixth Supreme Judicial District.

Action by Sallie Lou Harris against the Travelers' Insurance Company. Judgment for plaintiff was affirmed by the Court of Civil Appeals (178 S. W. 816) and defendant brings error. Judgment of the Court of Civil Appeals and of the trial court reversed and cause remanded.

Thompson, Knight, Baker & Harris and Geo. S. Wright, all of Dallas, for plaintiff in error.

Lacy & Bramlette and Young & Stinchcomb, all of Longview, for defendant in error.

SADLER, J.

The Travelers' Insurance Company issued an accident policy to George V. Harris on March 31, 1908, in which it insured him against bodily injuries effected directly and independently of all other causes through external, violent, and accidental means, wherein it promised in event of death to pay to his wife, Sallie Lou Harris, the sum of $5,000, with certain accumulations. Within the policy there were certain exception clauses, the ninth of which is:

"This insurance shall not cover * * * injuries * * * from voluntary overexertion, from voluntary exposure to unnecessary danger. * * * Nor shall this insurance cover accidents, injuries, death, * * * resulting directly or indirectly from entering or trying to enter or leave a moving conveyance using steam as a motive power, * * * or happening while being in any part thereof not provided for occupation by passengers, or while being on a railway bridge or roadbed."

The assured was injured at Longview, Tex., on July 9, 1912, and died therefrom a few days later. The policy was in full force at the time of the injury. From a judgment favorable to the beneficiary, writ of error was brought to the Court of Civil Appeals, and the judgment affirmed. 178 S. W. 816.

In the trial court the plaintiff pleaded that the accident came within the terms of the policy and was covered thereby, although not setting up the exception clauses specifically. The defendant pleaded these clauses, and on the trial the plaintiff introduced the contract in evidence.

The proof showed that the insured was injured at Longview, under such circumstances as tended to raise the issues of (a) whether the assured was endeavoring at the time of the injury to enter a moving passenger train using steam as a motive power, and (b) whether it occurred while assured was on a railway roadbed.

The defendant sought to have the trial court peremptorily charge in its favor, on the ground that the burden was on the plaintiff to plead and prove that the injury to the insured did not fall within the terms of the exceptions set forth in clause 9 of the policy, and on the ground that the evidence failed to show an accident coming within the terms of the policy. It also asked a charge placing the burden on the plaintiff to establish that the accident did not fall within the exception.

The trial court and the Court of Civil Appeals held against the contentions of the insurance company on both propositions, and writ of error was granted by the Supreme Court in the view that the rule announced in Insurance Co. v. Co-operative Association, 77 Tex. 225, 13 S. W. 980, should be applied in the instant case.

The consideration of these questions has necessitated a very comprehensive search of the authorities, in an effort to ascertain the rule which on principle should be applied. The courts of the country are not a unit on the application of the rule governing in such cases.

The contra holdings of the court can, however, be accounted for on the difference in the construction of the contracts by the courts. Those courts which treat the contracts as being general, and the clauses declaring what they shall not cover as "stipulations added to the principal contract to avoid the promise of the insurer by way of defeasance or excuse," hold that these clauses are defensive, and must be pleaded and sustained by the insurer; while the courts which construe the exception clauses as "taking something out of the general portion of the...