Providence Life Insurance & Investment Co. v. Martin

Miller, J., delivered the opinion of the Court. By the policy upon which this action was brought, the husband of the appellee was insured against fatal accidents, as well as those resulting only in personal injury. The assured was a locomotive engineer, in the employ of a railroad company, whose principal business is the transportation of coal from the mines in Allegany county; and, on the 21st of July, 1866, whilst backing his engine upon a down grade, with a car in front as a precaution to check the speed, he directed the fireman to run it, and went upon and over the tender to get into this car to draw the brakes, and in doing so slipped and fell between the car and the tender, and was instantly killed by the tender passing over his body. The speed at the time was about eight miles per hour, on a descending grade.

The chief grounds of defence taken by the insurance company, which we shall consider in their order, are: 1st. That, under all the circumstances of the case, this was not an accident within the terms and conditions of the policy for which the insurers are responsible. 2d. That notice of the death, with full particulars of the accident, was not given within the time required by the second condition of the policy. 1st. The policy insured the “ deceased against loss of life in the sum of $2,000, to be paid to Anna Martin or her legal representatives within ninety days after sufficient proof that the assured, at any time after the date hereof, and before the expiration of this policy, shall have sustained personal injury caused by any accident within the meaning of this policy and the conditions hereunto annexed, and such injuries shall occasion death within ninety days from the happening thereof, sufficient proof being furnished this company.” It is then provided that no claim shall be made under this policy in respect of any injury ³¹² unless the same shall be caused by some outward and visible means, of which proof satisfactory to the company can be furnished, “and this insurance shall not extend to any injury caused by or arising from natural disease, or by any surgical operation rendered necessary by disease, or to any death or injury caused by duelling or fighting, or other breach of the law on the part, of the assured, or by suicide, whether felonious or otherwise, or by war, riots or invasion, or happening while the assured is in a state of intoxication, or riding races, or by his wilfully exposing himself to any unnecessary danger or peril." It is also further provided that “ this policy is granted on the express condition that the declarations of the assured in his application for this insurance (which is hereby referred to and made part of this contract, and a warranty on the part of the assured) are true in all respects." In his application the assured said: “ My age is thirty-two years; my profession or occupation is locomotive engineer; my class of insurance is general accident; my class of risk is special,” &c.

It was proved that the premium for insuring an engineer, fireman or brakeman was the same in each case, and was the highest rate except for persons working in a powder mill. It is wholly unnecessary to examine, in this case, the law upon the subject of warranty or of conditions precedent, for it is not pretended the statements in the application for insurance were not, in every respect, literally true. The assured was, at the time of his application, a locomotive engineer by profession or occupation, and the condition or warranty in this particular was fully gratified. The purpose of this stipulation was to enable the company to fix the rate of premium and guard it against misrepresentation and fraud by preventing those whose ordinary occupation rendered them more .exposed to accident, from obtaining insurance at the same rate as those whose professions and pursuits in life are usually attended with less peril and less exposure to danger.

But there is no condition or warranty, in any part of the policy, that the assured will not temporarily or permanently engage ³¹³ in any other occupation, nor does the contract stipulate that the accident insured against must happen whilst the assured was acting or engaged in his employment as a locomotive engineer. On the contrary, the company contracted, in plain, unequivocal terms, to insure the deceased against any accident save those embraced in the enumerated exceptions, and every injury caused by accident, save those specially excepted, is within the meaning of the policy and its conditions. It is not, therefore, a substantive defence to this action, even if the proof established the fact that the deceased, at the time of the injury, was endeavoring to perform the duty of a brakeman, or was acting out of the line of his own duty as engineer, or even contrary to the rules and regulations of his employers, for, unless he received the injury by wilfully exposing himself to unnecessary danger or peril within the meaning of the exception, the accident is covered by the policy. Nor is it a good defence that the accident was caused by the mere carelessness or negligence of the assured.

In cases where the foundation of the action is an injury occasioned by the negligence of the defendant, and the liability of the latter grows out of such negligence, it is always a good defence to show contributing negligence oil the part of the plaintiff, but here the liability is created by a contract, one of the chief objects of which was to protect the assured against his own mere carelessness or negligence. It has long been the universally settled construction of fire policies, that they cover a loss where the fire may be caused by the carelessness, negligence and Avant of due caution on the part of either the assured himself or of his servants, agents or tenants, because one of the principal objects the assured has in vícav in effecting an insurance, is protection against casualties arising from these causes. The same construction, for the same if not a stronger reason, must be given to a policy like the present, not only because of the character of the insurance effected, but because its positive language, and the terms of the exception, show that all accidents resulting from mere carelessness or negligence are ³¹⁴ insured against. The observance of due care and diligence on the part of the assured, is no element of the contract on his part, and can in no way affect the right of action thereon.

The real defence, therefore, on this branch of the case, is narrowed down to the question, whether upon all tlie proof on the subject the death was caused by wilful exposure to unnecessary danger or peril, it being conceded this is the only clause of the exception that has any bearing upon the