86 FEDERAL· :REPORTER.
the Dutchman, nor is there'any evidence that the owners of the Black Rocks ever knew -of any vein or indication of a vein there. It is not shown that tlie locators of the Black Rock claims are dead or absent, nor is it suggested that it was difficult to prove the fact of discovery, iUt existed. On this point, the plaintiff's case rests on the theory that, a record ·of a location and the marking of it on the ground being shown, the court should presume a discovery of a vein. I do not think such a presumption should be made. There will be a decree for the defendants, quieting their title against the plaintiff's adverse claim to the premises in controversy.
TRAVELERS' PROTEC1'IVE ASS'N OF AMERICA v. LANGHOLZ. (Circuit Court of Appeals, Fifth Circuit. March 1, 1898.)
Where a policy of insurance provides,"The member hereby agrees that the Travelers' Protective Association shall not be liable for death when caused by intentionallnjuries inflicted by the member or any other person," and the proof shows the insured was murdered,his was caused by intentional injuries, and no recovery can be had.
In Error to the Circuit Court of the United States for the Western District of Texas. Henry. T. Kent, for plainti1;I in error. Houston & Houston, for defendant in error Before PARDEE and McCORMICK, Circuit Judges, and SWAYNE, District Judge.
SWAYNE, District Judge. This wils a suit brought by the defendant in error, Matilda Langholzj' in thedistri'ct court, Forty-Fifth district, of Bexar county, Tex., on March 20; 1896, and removed by the plaintiff in error to the United :States circuit court for the Western districtof Texas ion the 22d of May, 1896. The actIon is upon a policy of 'life and accident insurance issued by the plaintiff. in error corporation to Charles J. Langholz.', The which the cause went to trial alleges tMt the plaintiff below #asa feme sale; that the defendant below is a corporation of the· state of Missouri; that the said Chmles J. Langholz was the son: of the plaintiff below, and became a memberofthe said corporation defendant, and became entitled to have said defendant issue to him a certain policy of insurance upon his life, the benefits of which, in case of death, wete 'payable to the plaintiff 'below, by which policy she would be entitled to $ffi,OOO. She then sef out the policy of insurance or certificate of membership in hrec verba, with the indorsements upon the back thereot She further alleges tMther said son, Charles J. Langholz,on or about the 9th day of June, 189.5, came to his death by accident, within 'the meaning and provisions of the said certificate.6f membership or policy of insurancp-: and she further alleges in this connection' that her said son was murdered on said date, in the state of Texas, 'by one John Taylor, being
TRAVELERS' PROTECTIVE ASS'N V. 1.ANGHOLZ.
shot through the head with a Winchester rifle f from which his death resulted immediatelYiand she further alleges full compliance by her said son with all the requirements and conditions of said policy of insurance, and all of the rules indorsed thereon, which latter are as fol· lows:
"The member hereby agrees that the following rules shall be observed: That the Travelers' Protective Association of America shal1 not be liable for injm'ies incurred by a member In occupation more hazardous than specified in his appli· cation for membership, or in case of Injuries, fatal or otherwise, wantonly or intentionally inflicted upon himself while sane or insane, or in case of disappearance, or injuries of which there is no visible mark upon the body (the body itself not being deemed such a lllark in case of death), or in case of injury, dis· abillty, or death happening to the member while intoxicated, or in consequence of his having been under the influence of any narcotic or intoxicant, or death or disability when caused whol1y or in part by any bodily or mental infirmity or disease, dueling, fighting, wrestling, war or riot, injury reSUlting from an altercation or quarrel, unnecessary lifting, voluntary exertion (unless in a humane effort to save human life), voluntary or unnecessary exposure to danger, or to obvious risk of injury, or by intentional injuries inflicted by the member, or any other person, injUry received either while avoiding or resisting arrest, While Violating the law or violating the ordinary rules of safety of transportation companies, or riding on a locomotive, or to cases of injury caused by the diseases of epilepsy, paralysis, apoplexy, sunstroke, freezing, orchitis, hernia, fits, lum· bago, vertigo, or by sleepwalking, voluntary inhalation of any gas or vapor, injury fatal or otherWise, resulting from any poison or infection, or from anything accidentally or otherwise taken, administered, absorbed, or inhaled, disease, death, or disability resulting from surgical treatment (operation made necessary by the particular injUry for which claim Is made, and occmrlng within three calendar months from the date of the accident, excepted)."
Due proof of death was presented, and claim was made on defendant below for $5,000. She also claimed the sum of 12 per cent. statutory damages, and $1,500 as reasonable attorney's fees, to which the defend· ant below filed a general demurrer, and also a special demurrer to the claim of 12 per cent. damages and attorney's fee. At the same time it filed the following answer:
"The defendant further excepts special1y to the al1egation in the said amended petition that the death of Charles J. Langholz was not caused by 'intentional Injuries infilcted by himself or any other person, received either while avoiding or resisting arrest, while violating the law, or violating the ordinary rules of safety of transportation companies,' as alleged in the fifth page of said amended petition, because said allegations are immaterial and irrelevant, under the rules Indorsed on the back of the certificate of insurance, as shown on the third page of said amended petition. Of this the defendant prays the jUdgment of the court."
The special demurrer was sustained by the court, but the general demurrer was overruled, to which the defendant below excepted, when, upon an agreed state of facts, and the jury having been waived, the cause was submitted to the court below, which fonnd in favor of the 1>laintiff for $5,000, with interest from September 22, 1895, and entered judgment accordingly, from which the defendant below appeals, and brings the cause here upon the following assignments of error:
"First. The court erred in overruling the defendant's general demurrer to the plaintiff's first amended original petition, because said amended original petition sJ;lowed no cause of action on its face, in this: Thatlt is alleged that Charles J. Langholz came to Ws death by intentional injuries inflicted upon him by another, and the certificate of insurance, insuring the said Charles J. Langholz, whicb was fully set out in the said amended original petition, showed that the defend-
ant was not liable in case of death so occurring, which error is set .out in defendant's bill of exception No. 1. Second. The court erred In giving judgment for the plaintiff and against the defendant, because the speciaJ: t1.ndlngs of fact made by the court show that said Charles J. Langholz was intentionally murdered by one John Taylor, and that the certificate of Insurance, set out In said special findings exempted the defendant from lIablllty from death so occurring; and that the jUdgment shoUld bave been given to the defendant upon the said special findings, which error is set out in defendant's bill of exception No.2."
It is evident from the rules set put on the back of the policy, as well as from the wording in the body thereof; it was issued as an accident policy only; hence the many conditions or causes of death or injury named in which the company should not be liable. One oHhese, read· ing as required by the grammatical construction of the paragraph, and omitting that part not pertinent to this case, is as follows:
"The ,member hereby agrees that the Travelers' Protective Association of America shall not be liable for '" '" '" death, '" '" '" when caused by Intentional injuries inflicted by the member or aily other person."
The statement of facts in this case agreed on, and the, findings of the court, show the insured to have been murdered (that is, ,intentionaIlj' injured by another person); and under, ,the construction put upon identically tIle same language in Insurance Co. v:M:cConkey, 127 U. S, 661, 8 Sup. Ct. 1360, the plaintiff cannot recover. In that case Justice Harlan, speaking ,for the court, said:
.'We of the opinion that the Instructions of the jury were nldienlly wrong in one particular. . The policy expressly provides that no claim shall be made under it when the death of the insured was caused by intentional injuries inflicted by the insured or any other person. If he was murdered, then his death was caused by intentional injuries inflicted by another person. Nevertheless, the Instructions to the jury were so worded as to convey the idea that, if the insured was murdered, the plaintiff was entitled to recover; In other words, even if the death was caused by wholly Intentional injuries inflicted upon the insured by another person, the means used were. 'accidental' as to him, and therefore the company was liable."
This is the only case cited bearing upon the question at bar from the supreme court. It is controlling here, and, as we fully agree with and follow it, we must reverse and remand this case, with, instructions to the court below to enter judgment for defendant beloW.
SMITF.I: v. DAY et a1. (Circuit Court, D. Oregon. No. 2,307. March 23, 1898.)
Contractors making rock excavations on government property for river 1m· provements a.re"to be considered; soufar as regardl> their duty to avoid injuring third ,persons, as owners of the premises" and are 110trequired to use extraordinary (,!are,such as covering t)leir blasts, but, only ordinarJ" care. on.riV'er stealtlMats, which are perru,.itted to land near the place where, the .is carried on, with the, express understanding tha't'. the boat owner Il1)ist assume all respon§lJbility, lire t() be regarded as there by mere or suffel'aDec; :md, their, own peril, if ordinary care is used. " '
FOR RIVER IMPROVEMENTS-BLASTING ON . ' . ' .. ' . '