Witt v. The Spot Cash Insurance Company

• Decision Date: 04 May 1929
• Docket Number: 28,448
• Citation: 276 P. 804,128 Kan. 155
• Parties: AUGUST WITT, JR., Appellee, v. THE SPOT CASH INSURANCE COMPANY, Appellant
• Court: Kansas Supreme Court

276 P. 804

128 Kan. 155

AUGUST WITT, JR., Appellee, v. THE SPOT CASH INSURANCE COMPANY, Appellant

No. 28,448

Supreme Court of Kansas

May 4, 1929

Decided January, 1929.

Appeal from Mitchell district court; WILLIAM R. MITCHELL, judge.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. ACCIDENT INSURANCE--Injuries from Violating Law--Speeding at Turn. An accident insurance policy provided that it should "not cover any loss caused or contributed to by violation of law." The insured was injured in attempting to turn a corner while driving an automobile at a speed in excess of that allowed by the statute. (Laws of 1925, ch. 84, § 1.) Held, the insurance company was not liable.

2. SAME--Evidence. The plaintiff's evidence considered in an action to recover on an accident insurance policy, and held to bar recovery because the accident was caused or contributed to by plaintiff's violation of law.

C. A. Leinbach, of Onaga, and William N. Tice, of Beloit, for the appellant.

C. L. Kagey and L. M. Kagey, both of Beloit, for the appellee.

Hopkins J. Harvey, J., dissenting.

OPINION

HOPKINS, J.:

The action was one to recover under an accident insurance policy for personal injuries. Plaintiff prevailed, and defendant appeals.

Issuance of the policy was admitted but liability denied because the accident was alleged to have been caused or contributed to by the manner in which defendant drove his automobile; that he attempted to turn a corner at a speed of thirty miles an hour which is in excess of the speed allowed by law. The policy contained this provision:

"The insurance under the accident and health provisions of this policy does not cover any loss caused or contributed to by riots, violation of law, disappearance, alcoholism, or self-inflicted injuries."

The plaintiff related substantially that he was driving from Cawker City at thirty miles an hour; that he did not know he was near the corner; that when he came over a hill and the lights were thrown down the slope he saw the corner; that he tried to slow down, but was too near the corner and a grader ditch; that he ran into the grader ditch with one front wheel and upset his car, and that it turned over on its side. He wrote a letter to the defendant describing the accident as follows:

"Received your letter in regards to how fast I was going at the time of the accident. About thirty miles per hour. The deep grader ditch caused my car to turn over, and I was coming down grade and there was no road straight on, so it was turn or run straight in the four-foot bank. I thought I could save myself by turning a little, but it didn't."

Information as to the lay of the ground and the familiarity of plaintiff with the location was brought out on cross-examination:

"I left Rudolph Sheet's home between two and three o'clock . . . driving a Dodge car. I have lived in this county all my life . . . forty years old. I have been over this road at different times during the past twenty years. The hill is west of the corner, 100 yards from the corner, maybe 200 yards from the corner. It is slightly down hill from there to the corner. The road connects with a road running north and south. It does not go on east. The corner is rounded."

Section 1 of chapter 84 of the Laws of 1925 regulates the driving of motor vehicles on the public highway. A portion of that section reads:

"Upon approaching a railroad crossing or intersection of highways outside of any village or city, or turning corners, the person operating a motor vehicle shall reduce the speed of such vehicle to a rate not exceeding eight miles an hour, and shall not exceed such speed until entirely past such crossing or intersection."

In Rowe v. United Com. Trav. Ass'n, 186 Iowa 454, 172 N.W. 454, it was said substantially that a statute limiting the speed of automobiles on the highway is a law within the meaning of an accident insurance policy providing that its benefits shall not be extended to cover any death, disability or loss resulting from any violation of law. In the opinion it was said:

"The language of the insurance contract which appellant relies upon as affording it exemption from liability to the plaintiff is that 'the benefits under this article shall not extend to or cover any death, disability or loss resulting from the violation of any law.'

"The statute above quoted is a law within the meaning of the contract. It prescribes a duty for the violation of which a penalty is provided, and it follows of necessity from the agreement that, if Rowe violated this law, and his death 'resulted from' such violation, then there can be no recovery of benefits; and this, we hold, the jury should have been told." (p. 467.)

In that case the policy provided that the insurer would not be liable if the injury "was caused through violation of law and voluntary exposure to danger." The policy in the instant case reads "caused or contributed to."

The courts are in agreement that there must be some causative connection between the acts which constitute the violation of the law and the injury or death of the insured. If the acts constituting the violation of law have ceased before the injury, then it is not within the provision of the policy. (See note 17 A. L. R. 1005.)

In Duran v. Insurance Company, 63 Vt. 437, 22 A. 530, the insured was hunting on Sunday, which constituted a misdemeanor. The insured slipped on frozen ground and was injured. It was held the insurer was not liable because the insured was injured while violating a law. It was said in the opinion:

"R L. 4316 prohibits hunting, shooting, pursuing, taking, or killing wild game, or other birds or animals, on Sunday. A person violating the provisions of these sections is to be fined. At the time of the accident the plaintiff was engaged in hunting. He had his gun with him and was ready to shoot any game he might see, whether in the field or along the highway on his way home. He started out to secure game wherever he might find it, and it does not appear that at the time of the accident he had abandoned his purpose. In hunting he was violating the law of this state. The traveling of the plaintiff was as much a part of his act of hunting as carrying...