FEDERAL' 1UilPQTER), vol.
the defendants there would not displace the plaintiff's sales there, if the damages for that would be recoverable; for he did not sell there. If they were there, and brought here" they might displace sales here. There was no evidence that anysueh Were brought here, except the plaintiff's loss ,of migMqeinJ\lr;fed to arise from, the supply from the defendants coming frOID' there in the hands of iininigrants, or from allowed to those disposed of here. 'For $ll Qftllose losses the That appears to have been the stand by the remittitur before utmost limit to which the plaintiff was entitled to have the jury go, upon the evidence.' This would leave them to find that the entire diminution of the plaintiff's sales, from the time of the appearance ofthe defendants' book, past the commencement of the,$Uit, down to the time of trial, resulted from the books of the defendants disposed of by them before the commencement of the suit. The defendants strenuously insist that this was too mucbrbuHo that wag within the province of thejury. The, findirigof 'so mnch beyond, may be accounted for by failure to give weight to the ,effect of a recovery by the plaintiff of the copies of the de-, fend ants' book in possession of the defendants. If the plaintiff feels that the remitt#ur reqUired to save the:verdict is too large, his right of eryin this action will be left to him if he omits to file it, and lets the verdict he set aside. Motion to modify denied.'
&: . (c.rcwtt aOUert, S. D. MiBiisriwiow, D.
January 17, 1890.)
" An aoo1dent: policy cont.ained theifol1Qwing condition: "This insurance does not cover entering"or trlinlt to enter. or' a moving conveyance using steam as a motive power;!t ., railroad employes excepted." Assured was bap;gage checker of a,transfer. company. ,Hie. business required him to lDeet and .coming and baggage to other railroad lines, and to residences in Vicks. bnrg. Held, assured Wail a railroad employe, within the meaning of the foregoing exception. : . .' ' . , " ' .. . . . " Wbether such an agent is of "VOluntary exposure to unnecessary'danger, It . . in attempting to bOard a lDoving train; is a question of fact for the jury. 8. W A,BRANTY....BoJ>ILT :\:NFIRMIn. . , , The applicM!on for &11 containE!d a w.arranty that the applicant .,. ·'was not possessed of, norsubJeDt W, anybodilylUflrmlty·. The evidence showed that aslilul'ed was near-sighted. ;Held, not & bodU,:inftrmity, within the meaning . of, the warranty. . TheconlUtionil of ail iilsuranoe policy. proViding for forfeitures of thesaIIle, are .to be construeds,trictly against the ,ceiI!ipl1p'y, and liberally in favor of the·assured· .The burden of proof is on the compli.4t to eS'f,ablish the breach of the conditions relied on for 'suoli futfeiture.' (r 'J; .c' , ;: . , , ' . ,
OFPRIU4H1,M-:-EIITol";BL!. .·. . ' . ,.'
L hSUlU.NOB-'AoOIDIl:NT PoLiilY-RAmw.lT
·The pollror,or contained rll-stipulation that "all claims for injuries et· . fected during any period for which itS respective premium 'has not been actually , . paid ' shall· Qe forfeited to the compa,ny." Assured ga,ve. an order on· his emploYer for the preIlllum when the polioy wQ8·1s!lued, payable in four installments, whioh '. was accepted by the agent, and forwarded' to the oompany.' 'l'he oompany failed to
JIlon1Ju* Hetd, the co!Upany is estopped to. set up the non-payment of the pre'mium, . ,, e.·SAJolB-W AlVER OP DEPENSES. Afterthe.death of the assured, and with knowledge of facts which might have been pleaded by the company in avoidance of the policy, the agent of the company who issued the policy deman(led and received from the benel1ciary in the policy the ,unpaid premium. Held a waiver of lIuch defenses; ..
: Eresent the order for paymej1t prior to the death of assured, althouRh
Amended pleas may be filed at any time before verdict, to bring the merits of the controversy between the parties fairly to trial ; but Where the facts set up in such pleas.were known, or ought to have been known, to defendant, leave will not be granted to 111e them after all the evidence has been inttOt\uoed by both sides.
·AtLaw. Action on insurance policy. Dabney; McCabe kAnderson, for plaintiff. M'I1kr, Smith &: Hirah, for defendant.
HtLL, J. This is an action brought by the plaintiff, Mrs. Theresa Cotten, against the defendant corporation, to recover the sum of $3,000; with· interest, ulleged to be dlie upon an accident insurance policy, issued to William M. Cotten, the son of the plaintiff, for her benefit in case of his death from accidental causes. The questions now for decision arise: (1) Upon defendant's motion for leate to file two additional pleas to plaintiff'sdeclarationj (2) upon defendant's motion for a peremptory instruction to the jury to returna verdict'f'or itj and (3) on the plaintiff's motion for a peremptory instruction to tbe jury ·to return a verdict for ber. These several motions are made at the conclusion of tbe evidence on both sides, and will be consideredin the order stated, after a statement of tbe facts established beyond dispute; which areas follows: Cotten, to whom the policy was issued, was a young man about 32 years of age, of ratber small stature, was inclined to be near-sighted, and usually 'wore glasses to aid his vision, but could see without them, and had been engaged for sOme 12 years on the Vicksburg & Meridian Railway, as a seller of books, newspapers, etc., usually sold by such persons, as baggage-master, and for some time before, and at the time the policy was issued to him, as transfer agent on the railroad; his business mainly being to meet the passengertrains at Jackson, or between Vicksburg and Jackson, and take up tbe ,checks of the baggage designed for other lines of transportation and destillation, and place thereon the checks of the transfer company in whose employment he was, and which trallsfer company was employed by the railroad company to perform that service, which service was necessary to be done for the railroad in conducting its business. Getting on moving trains was shown to have been an incident oihis business. Cotten was on the railroad, and engaged in this business, when the contract of insurance was entered into between bim and one Strong, the agent of tbe defendant, who issued the policy, and received the order on CbarlesWheeler, who was "the manager of tbe transfer company, and Cotten's employer, for the payment of the premiuDls, payable in four installments, which premiums would have been paid by Wheeler aooordmgto the terms of the order if application. had
,nDElU.LBEPOwrDo,vol.41. but which order was never presented to the demanded: The application for the policy and the policy constitute the contract between the parties, and each contains the usual and stipulations f9und in contracts of this character, only a few of which need be stated to an understanding of the questions raifled by the motions. Theapplicntion is for a policy of insurance against bodily injuries, effected tQrough "external, violent, and accidental means," which policy was based upon the following statement of agent; facts,warranted to be true: That assured's occupation was that he was 32 years of age, and resided in Vicksburg; that his employer was the Vicksburg Transfer Company, and 'his wages were 875 per month; the amount of insurance to be $3,000 in case of accidental death, payable to plaintiff, his mother; ,amount of weekly indemnity for totally disabling injuries not to exceed $15; that he had never had, nor WH,$,he then subject to, fits, disorders of the brain, or any bodily or mental infirmity. The premiums to be paid for the time for which the insurance Was taken all together am(;mnted to the sum of8S0. Upon the back of the policy is ,a condition that the policy shall not cover injuries ;resulting from the following caUS(ils: been
"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 i walking or ,being on any railWaY bridge or roadbAd. Railroad employes excepted. ... ... .. Voluntary exposure to unnecessary danger. ... ... .." ,
made 'to bimtherefor,
On the 26th d,ay of January, 1888, Cotten met the passenger train coming from Jackson to Vickl\burgat the depot at Jackson, and went into the baggage-car, and hung up his overcoat and ring on which were his transfer checks, stating that he had to go across the street, but would retlJrn. Soon after this the train down on the and entered on the main track to Vick8burg. There is on the sida· of the track juet west of the crossing on Capitol street a. coal chute, where the train psually stopped and took on coal when going towards Vicksburg;, aud the. intention of the .engineer was to,stop for that purpose at that time, from his fireman that it was until he got near the chute, not necessary, went on. The train was then running at.1t rate of speed of between four and six milel\ per hour, and this was its I3peed when ten attempted to get on.it; he having come up Capitol s.treet to the point where the baggage-car usually stood when the engine Was receivillg coal. Assured, while attempting to get on the train, as iS13upposed, (no one having witnessed the accident,) by some misstep or other accident was thrown under the train, and one lill1bwa.s severed from his body by the wheels, from which injury he died the same evening. Some time after Cotten's death, Strong, the agent.o.f the defendant,who took the cation and issued the policy, a.nd the, only agent which defendant, at t4at time. had in this state, made P,n. of all the circumstances connected with Cotten's death., and afterwards demanded of plaintiff the payment of the $30, the sum of the installments agreed to be paid, promising that the full:amount of $3,000 would be paid within the time spec;
COTTEN .,. FIDELITY " CASUALTY CO.
ifiOO in the 'policy, and received from the plaintiff the money, for which be, as such agent, gave a receipt, and sent the money'to the general agent of the defendant at Chicago, Ill., who sonie time afterwards returned the money to plaintiff, who immediately sent it back to the general agent, and demanded the payment of the policy. The general agent declined to accept.. it, and refused to pay the policy, upon the ground that the premium had not been paid before the death of Cotten. Cotten was classed as a "medium " risk, which classification embraces baggage-masters, express messengers, and brakemen on passenger trains, and was charged the same rate that they were. These are all the facts necessary to be stated for a decision of the questions raised by the motions. This being the first suit, in either the state or federal courts, in this state upon an accident policy, the questions involved have been examined and presented by the distinguished counsel on both sides with unusual care and ability, and numerous authorities have been cited and commented upon, which, considered together, establish rules of a general character, which are not so difficult to understand in themselves, the difficulty being in their application to the different facts in each case. First. Insurance companies are bound by the acts, declarations, and agreements made by their agents, who are authorized to solicit insurance and to receive premiums, and issue and deliver policies; the acts, representations, and agreements of the agent being the acts of the comp81nies. . Secondly. The contracts" covenants, and agreements, when made, and not in violation of law or public policy, are binding on both the insurer and the insur.ed. Thirdly. When the assured, in his application, makes stat'ements re.quired of him by the insurer, which he warrants to be true, and which, if untrue, under the contract, are to avoid the policy, they will have that effect, whether they are material or not, provided the statements made and warranted to be true are clearly within the meaning of the warranty, and so understood by the applicant, or made under such circumstances that he is estopped from denying that he understood them. FO'Uirth1y. In cases of doubt as to the proper construction of the con,.. tract, the conditions for forfeiture must be construed strictly against the company, and liberally in favor of the assured. And this is so for the reason that these conditions have the effect, if enforced, to defeat the very object of the contract. Insurance companies, in order to protect themselves against fraud and impOSition, annex to the policies issued by them many conditions by which to a,void their obligations, many of which are put in type so small as not easily to be read, and are .either not read, or, if read, not understoo!l by the assured, and which importunate agents sometimes studiously avoid explaining and making known to the assured.The strict enforcement of these conditions .would often work a great wrong. to the confiding applicant, who often parts with his hard eamings hope andexpecta.tion of receiving some indemnity in
the day :bf misfortune for hii:Qself; oNrom·e wife and chU.. Bren, or his parents, dependent :upon his ,labors, when he is no longer ablelto' provide for them.' Thi( '1'ule is not only wellelltablished, but is right;, and 'should be applied in all; proper cases. . , .These are all the general rules itbatmeed be .The first question to:be considered is: Shall the proposed amendedpleasbefilEid? These pleas, in substance, allege that Cotten represented in his application that he was not possessed of, norshbject to, any bodilydnfirmity, and warranted the statements to be true, whereas, he was· before that time, and was then, near-sighted and defective in his vision. Under the statutes of: both :the United States and this state; and the rules of practice, amendments may, on proper conditions, be allowed to the pleadings at any time before verdict, so as to bring the merits of the controversy between the parties fairly to trial; the necessity for such amendments often growing out of newly-discovered testimony; or arising from an unexpected presentation of the issues and development of the case; but this rule does not relieve the pleader frompresanting his plea within the time required hythe·statute or the practice of the court, or within a reasonable time after ascertaining the facts upon which the defense is based, or, which is the same thing, a knowledge of such facts as will put a reasonable man on inquiry; whi:ch, ifprosecuted,would have led to ll.'.knowledge of the matters sought to be pleaded. The proof is that the policy was issued by Strong, the agent of the dElifendant,on the train, and while Cotten was in the discharge of his duties as transfer agent. The evidence further shows that Cotten usually wore eye-glasses, and the presumption is, had them on at that time. Strong is, as far as the evidence shows, still the agent of the defendant, and his knowledge of this fact was the knowledge of the defendant. In addition to this, the defendant's counsel reside here, as did Cotten in his life-time. A very little inquiry would have informed the counsel· that Cotten wore eye-glasses, and the inference could easily have been drawn that it was to aid his eye-sight. I take that the proper rule is that, when application is made to amend the pleadings after the trial has oommenced, if required, it will only be allowed upon affidavit that the facts upon which the plea is based were not before known to the defendant; so that, if there were no other reasons fOf overruling the motion, it comes too late. -But if the pleas were allowed to be filed, under the proof they could not be maintained. ,There is almost as much difference in the eye-sight of persons as in'anything else. : Some distinguish obJects clearly at long distances; others only at short distances. Many of the latter use glasses to aid their vision, but perhaps not one in 50 of this class, if asked if he was laboring under bodily infirmitY', would suppose that any allusion was made to his eye-sight, solong,at least, as his vision, aided or unaided, enabled him to attend to business aa other peoplejwhich the proof shows Cotten had done for 12 years, and that of a difficult. and hazardous character.· A fair,not to say liberal, construction to be placed upon the answer of Cotten is' that he did not, and could suppose that in theallswerhe'made,:orthat he was
COTTEN ri·. FIDELITY . &: _. CASUALn CO.
warranting that biseye-sight was good. But this is 'not all .. The agent. Strong, must at the time the policy was issued, to have known that Cotten wore and that it was to aid his sight. This was apparent; and, under the general rule, general warranties of soundness do nQteD1brace patent and obvious defects. This is enough to say on this motion. The motion is to instruct the jury to return their verdict for the ,_ The contract being admitted, as well aathe death of assured, during the period of the insurance, through external, violent, and accidental means, the plaintiff is entitled to recover the amount of the policy, unless defeated by the establishment of some affirnlative defense; a number of which been set up by special pleas, but most of which , under the proof, have been abandoned by the defendant, and need not be considered. The failure to pres.ent the order for the payment of the installments,of the premium as theyfell due, when they would have been paid if presented, estops the defendant from setting up this defense, even if the premium had not been afterwards demanded a,ndpaid. Cottenwas insured as a II railroad employe," within the meaning of the policy, although not employed by the railroad company,-the words of exception, "l'Ililroad employes," .having reference to the charaoter of employment, rather than to who is the employer,-and therefore had the right to go on or go off the train when moving, or to stand on the road-bed. The main and it may be said the only really debatable ground of defense is, that Cotten a.ttempted to get on the train unnecessarily and voluntarily while it was in motion, which, it isclaimed, was a "voluntary exposure to unnecessary danger," within the meaning of the condition quoted. Whether this is so or not deserves serious consideration. In one sense of the term he did go there voluntarily and unnecessarily, for he voluntarily engaged in. the business of a transfer agent on the Vicksburg & Meridian Railroad; but whetihe engaged in that service, which 'he had a right to do, and as.sumedthe risks of the position, to indemnify himself against which risks he took out this policy, it became necessary that he should go on the train, and, being necessary, it was in that sense in, It has been urged with earnestness by defendant's counsel that he should not have left the baggage-car when he entered it and hung up his coat and checks. What his purpose was we do not know, but must presume it'was lawful and perhaps necessary. The defendant'has failed to show that it was not, and the burden is on it to do so. He had every to suppose that the train would stop for coal at the chute, and was at the place where he could have boarded it while it was standing still; but, contrary to what we must presume under the circumstances he reasonably expected, it moved on, but at such.a slow rate of speed, as the evidence shows, that anyone accustomed to getting on a moving train could: then have done SO without danger. Accidents may, and sQmetlmes doj:httppen in getting on the train when standing still; hut it )'Vas also the ,purpose, to secure indemnity for. injuries which might be l'eqeived whenigetting on or :off a moving train that this policy wasob-
tained. Whether or not his effort to get on the train moving at the rate stated was a "voluntary exposure to unnecessary danger," is a question for the Jury. As a further answer to the defenses set up by defendant, it is to be presumed that the examinatiortmade by Strong, after the death of Cotten, was under instructions of the defendant. Without any fraud or misrepresentations by plaintiff, :or anyone acting for her, Strong, the agent, demanded and received the' full amount of the premiums due, and paid the same over to the defendant; upon the understanding that the amount of the policy would be paid within the specified time; in all of which he appears to have acted in good faith towards both parties; This, it seems to me, should be held as a waiver of all the other defenses based on facts known to· Strong aithe tIme he collected the premium, and now setup, and binds the defendant, whose refusal to pay the amount of the policy must have arisen from: some of such facts. A88OCiaticnv. Beck, 40 Amer.Rep.296; Oshkosh Gas-Light Co. ·v. Germania Fire Ins. Co., 37 N. W. Rep. 819; Insurance Co. v.Raddin, 120 U. S. 7 Sup. Ct. Rep. 500; 1 Wood, Fire Ins. 50,51; Sclumeman v. Insurance Co., 16 Neb. 404, 20N. W. Rep. 284. The result is that the motion of the defendant .for an instruction by the court to the jury to return a verdict in its favor must be overruled, and the motion of the plaintiff for an instruction by the court to thejury to return a verdict in her favor the sum of $3,000, with 6 per cent. interest thereon, according to the policy,must be sustained.
WILDER tl. BOARD OF COU1i:TY COM'RS RIO· GRANDE COUNTY.
(Oircuit Court, D. ColMaao.February 24, 1890.)
In an action against a county on warrants given in satisfaction of a judgment, an answer which alleges that at the time the judgment was rendered the count;! debt exceeded the constitutional limit, without stating that such debt exceeded the limit at the time of making the COIl tract on which the judgment W811 rel'1dered, . is demurrable. A judgment against a county is not oonclusive as to the legality of the debt on which it was rendered, where it does not appear that the question of the lesalit7 of the debt was put ill issue by the pleadings.
At Law. On demurrer to answer. J. L. Jerome, for plaintiff. Ira J. BloCYmfleld a.nd D. J. Burns, for defendant.
HAJ,LETT, J. This is·an action to recover the sum of 15 county warrants issued by the defendant· in payment of certain judgments. Seetion 527, Gen. St. C010., 'provides that, upon a judgment against a board of county commissioners, no execution shall be issued, but the