Travelers Insurance Company v. Snowden

• Citation: 63 N.W. 392,45 Neb. 249
• Decision Date: 22 May 1895
• Docket Number: 5696
• Parties: TRAVELERS INSURANCE COMPANY v. ANDREW J. SNOWDEN
• Court: Supreme Court of Nebraska

63 N.W. 392

45 Neb. 249

TRAVELERS INSURANCE COMPANY v. ANDREW J. SNOWDEN

No. 5696

Supreme Court of Nebraska

May 22, 1895

ERROR from the district court of Buffalo county. Tried below before HAMER, J.

REVERSED AND REMANDED.

Charles Offutt and Charles S. Lobingier, for plaintiff in error:

The exception clauses relied upon are not only valid but commendable. They are enforceable under the general principle of the law of contracts. (2 Parsons, Contracts, 494*, 500* 505*; Robertson v. French, 4 East [Eng], 135; Universal Life Ins. Co. v. Devore, 83 Va. 267; Schuylkill Navigation Co. v. Moore, 2 Whart. [Pa.], 491; May, Insurance [2d ed.], sec. 172; Shader v. Railway Passenger Assurance Co., 66 N.Y. 441; Standard Life & Accident Ins. Co. v. Jones, 10 So. Rep. [Ala.], 530.)

Particularly the courts have enforced the clauses which except death from the "violation of law" (Duran v. Standard Life & Accident Ins. Co., 22 A. [Vt.], 530; New York Accident Ins. Co. v. Clayton, 59 F. 559--both violations of Sunday law--Travelers Ins. Co. of Hartford v Seaver, 19 Wall. [U.S.], 531), "voluntary exposure to unnecessary danger" (Travelers Ins. Co. v Jones, 17 Ins. L. J. [Ga.], 784; Hull v. Equitable Accident Association, 42 N.W. [Minn.], 936; Tuttle v. Travelers Ins. Co., 134 Mass. 175; Sautelle v. Railway Passenger Assurance Co., 18 Ins. L. J. [N. Y.], 892; Morel v. Mississippi Valley Life Ins. Co., 4 Bush [Ky.], 535; Hill v. Travelers Ins. Co., 17 Can. L. J., 44; Wright v. Sun Mutual Life Ins. Co., 29 U. C. C. P., 221), "entering or trying to enter a moving conveyance" (Miller v. Travelers Ins. Co., 39 Minn. 548), and "violating the rules of a corporation" (Bon v. Railway Passenger Assurance Co., 56 Iowa 664).

The court erred in its instructions in substituting the tests of negligence for the terms of the contract which excepted voluntary exposure. (Hull v. Equitable Accident Association, 42 N.W. [Minn.], 936; Miller v. Travelers Ins. Co., 39 Minn. 548; Damont v. New Orleans & C. R. Co., 9 La. Ann. 441.)

H. M. Sinclair, contra, cited: Marx v. Travelers Ins. Co., 39 F. 321; Burkhard v. Travelers Ins. Co., 102 Pa. 262; Freeman v. Travelers Ins. Co., 144 Mass. 572; Tucker v. Mutual Benefit Life Ins. Co., 50 Hun [N. Y.], 50; Scheiderer v. Travelers Ins. Co., 58 Wis. 13; Cotton v. Fidelity & Casualty Co., 41 F. 506; Tooley v. Railway Passenger Assurance Co., 2 Ins. L. J. [Ill.], 275; Bizzell v. Booker, 16 Ark. 308; Baltimore & P. R. Co. v. Jones, 95 U.S. 439; Wabash, St. L. & P. R. Co. v. Locke, 112 Ind. 404; Philadelphia, W. & B. R. Co. v. Stinger, 78 Pa. 225; Milwaukee & St. P. R. Co. v. Arms, 91 U.S. 494; Karr v. Parks, 40 Cal. 188; Moore v. Central Railroad of Iowa, 47 Iowa 688; Frandsen v. Chicago, R. I. & P. R. Co., 36 Iowa 372; Lowery v. Manhattan R. Co., 99 N.Y. 158; Matson v. Maupin, 75 Ala. 312; Richmond & D. R. Co. v. Howard, 79 Ga. 44; Chicago & E. I. R. Co. v. Hedges, 105 Ind. 398; Briggs v. Union Street R. Co., 148 Mass. 72; Brown v. Congress & B. S. R. Co., 49 Mich. 153; Kay v. Pennsylvania R. Co., 65 Pa. 269; Durant v. Palmer, 29 N.J.L. 546; Gravell v. Minneapolis & St. L. R. Co., 11 F. 569; Hoag v. Lake Shore & M. S. R. Co., 85 Pa. 293; Milwaukee & St. P. R. Co. v. Kellogg, 94 U.S. 469; Doggett v. Richmond & D. R. Co., 78 N. Car., 305; Allen v. St. Louis Ins. Co., 85 N.Y. 473; Wilson v. Conway Fire Ins. Co., 4 R. I., 156; Bartlett v. Union Mutual Fire Ins. Co., 46 Me. 500; Bowman v. Pacific Ins. Co., 27 Mo. 152; Phoenix Ins. Co. v. Slaughter, 12 Wall. [U.S.], 404; North American Life & Accident Ins. Co. v. Burroughs, 69 Pa. 43; National Benefit Association v. Jackson, 114 Ill. 533; Griffin v. Western Mutual Benevolent Association, 20 Neb. 620; Phoenix Ins. Co. v. Barnd, 16 Neb. 90; Bloom v. Franklin Life Ins. Co., 97 Ind. 478; Cluff v. Mutual Benefit Ins. Co., 13 Allen [Mass.], 308, 99 Mass. 317; Bradley v. Mutual Benefit Life Ins. Co., 45 N.Y. 422; Murray v. New York Life Ins. Co., 96 N.Y. 614; Travelers Ins. Co. v. Seaver, 19 Wall. [U.S.], 531; Kerr v. Minnesota Mutual Benefit Association, 39 Minn. 174; Harper v. Phoenix Ins. Co., 18 Mo. 109, 19 Mo. 506.

OPINION

The facts are stated by the commissioner.

IRVINE, C.

This was a suit on a policy of accident insurance, and resulted in a judgment in favor of the plaintiff, from which the defendant insurance company prosecutes error.

The policy sued upon insured Snowden against loss of time, not exceeding twenty-six consecutive weeks, resulting from bodily injuries, effected through external, violent, and accidental means, with a provision that if the loss of one entire hand or foot should result from such injuries alone within ninety days, the insurer would pay one-third of the principal sum such sum being $ 5,000. The policy designated Snowden's classification as "preferred (being a cattle dealer or broker and shipper, not tender or drover, not on ranch or farm, by occupation)." The insuring clause of the policy began, "does hereby insure, subject to conditions on back hereof." On the back of the policy, under the heading "Agreements and conditions under which this policy is issued and accepted," was the following:

"4. This insurance does not cover * * * accident, nor death, nor loss of limb or of sight, nor disability resulting wholly or partly, directly or indirectly, from any of the following causes, or while so engaged or affected: * * * Violating law; violating rules of a corporation; * * * voluntary exposure to unnecessary danger; entering or trying to enter or leave a moving conveyance using steam as a motive power; riding in or on any such conveyance not provided for the transportation of passengers; walking or being on a railway bridge or road-bed. (Railway employes excepted.)"

The answer of the insurance company alleged that the accident had been incurred under circumstances within the exceptions which we have quoted. The reply was a general denial.

The evidence tended to show that the insured was on his way from Cushing to Omaha, accompanying twelve carloads of cattle belonging to him, which he was bringing to market. The train was a long one and the cars containing his cattle were near the front end of the train. A stop was made for the purpose of taking water, at Seward, late on Sunday night. Snowden took advantage of this stop to alight from the caboose and go forward to examine his stock. He carried with him what is designated a "prod-pole," about five feet long and an inch and a half in diameter. He found a steer off its feet in a car about the fourth or fifth from the front of the train, and was endeavoring to get the steer on its feet by means of the prod-pole when the engine gave the signal to start. Snowden climbed upon the car. The train moved forward a very short distance and stopped again. Snowden dismounted and renewed his effort to get the steer on its feet. While so engaged another signal to start was given. Here the testimony becomes conflicting. Snowden testifies that he at once proceeded to climb upon the car by means of the ladder or steps on the side thereof, and that when he had almost reached the top of the car, the sudden movement of the train in starting wrenched him from the ladder and threw him upon the track, the wheels passing over one hand in such a way as to necessitate immediate amputation. Several witnesses, both train hands and passengers, testify that immediately after the accident Snowden stated that the train had started and was gaining such headway that he feared that he would not be able to jump upon the caboose as it passed, and that he therefore endeavored to jump upon one of the stock cars as it passed him, and was thrown upon the track while making the attempt. On this state of the evidence the court gave the following instructions, and no others:

"1. Before the plaintiff can recover he must establish his case by a preponderance of evidence.

"2. If the plaintiff recover, he can only recover one third of five thousand dollars, and interest thereon at seven per cent from the time he notified the company of his injury, if he did so notify them.

"3. The plaintiff as a shipper had a right to attend the cattle which were being shipped, and if he was injured while engaged in so caring for the cattle, his loss is within the risk taken by the insurance company; provided he acted with the prudence of a man of ordinary intelligence and prudence, placed in like circumstances."

The defendant requested and the court refused to give, among others, an instruction to the effect that if Snowden received the injury while he was voluntarily exposing himself to unnecessary danger, he...