the will; the party must intentionally and consciously assume the risk. This necessarily involves knowledge that the danger exists, and that the risk will follow an attempt to brave it. The act done may be voluntary, but it cannot involve 'voluntary exposure' unless the exposure is understood. Before the party can voluntarily expose himself to danger he must know of its existence." 9448 § 2406. Voluntary exposure-Proof of intention.-In order to defeat an action on a policy containing the provision against voluntary exposure, the defendant must prove something more than mere contributory negligence or the want of ordinary care on the part of the assured. A voluntary exposure means more than the lack of ordinary care and proof either of negligence or the want of ordinary care will not be sufficient to bring the assured within the exception of voluntary exposure. There is a great difference between approaching an unknown or unexpected danger and the exposure to the same. On this it has been said: "The approach to an unknown and unexpected danger does not make the act a voluntary exposure thereto. The result of the act does not necessarily determine the motive which permitted the action. The act may be voluntary, yet the exposure involuntary. The danger being unknown the injury is accidental."449 To defeat an action on a policy containing this clause the defendant must prove that the assured intentionally did some act which reasonable and ordinary prudence would pronounce dangerous.450 § 2407. Voluntary exposure-Effect of negligence.-Where a contract of insurance is general, insuring a person against accidents occurring by accidental violence without any exceptions, proof of contributory negligence is not sufficient to defeat the action. 451 But it 448 United States &c. Asso. v. Hubbell, 56 Ohio St. 516, 47 N. E. 544, 40 L. R. A. 453; Travelers' Ins. Co. v. Randolph, 78 Fed. 754. 449 Burkhard v. Travelers' Ins. Co., 102 Pa. St. 262, 48 Am. R. 205; Equitable &c. Ins. Co. v. Osborn, 90 Ala. 201, 9 So. 869, 13 L. R. A. 267, note; Lehman v. Great Eastern &c. Co., 39 N. Y. S. 912. 450 Equitable &c. Ins. Co. v. Osborn, 90 Ala. 201, 9 So. 869, 13 L. R. A. 267, note; Sutherland v. Stand ard &c. Ins. Co,. 87 Iowa 505, 54 N. 451 Champlain v. Railway &c. Co., 6 Lans. (N. Y.) 71; Providence &c. Ins. Co. v. Martin, 32 Md. 310; Freeman v. Travelers' Ins. Co., 144 Mass, was held by the Massachusetts Supreme Court "if a person voluntarily places himself in a position where he is exposed to an obvious danger and the precise injury happens to him which there is reason to fear, it cannot fairly be held that the language of the policy was not intended and understood to be applicable to such a case."452 The same rule substantially is stated by Mr. Joyce where he says "if the insured voluntarily places himself in such a position where from the surrounding circumstances a person of ordinary prudence and caution would reasonably hesitate to place himself for fear of danger to life or body, then there can be no recovery for injuries or death in consequence of such an act."453 Thus in an action to recover on an accident policy where it provides that the insurance does not cover death resulting from the exposure to unnecessary danger and the proof showed that the insured jumped from a moving train in the night time, it was held that such an act constituted more than ordinary negligence, and was consistent only with a conscious disregard of personal safety and that no recovery could be had. 454 But it has been held that where the proof shows that the injury was the result of the assured's own negligence that it was not accidental.455 § 2408. Voluntary exposure-Proof sufficient.-No general rule can be stated as to what is sufficient proof to show a voluntary exposure to known, obvious, or unnecessary danger within the meaning of a policy containing such terms. The rule stated in a previous section that such exposure must be intentional is not intended to measure 572, 12 N. E. 372; Keene v. New England &c. Asso., 161 Mass. 149, 36 N. E. 891; Wilson v. Northwestern &c. Asso., 53 Minn. 470, 55 N. W. 626; Spruill v. North Carolina &c. Ins. Co., 1 Jones L. (N. Car.) 126; Schneider v. Provident &c. Ins. Co., 24 Wis. 28, 1 Am. R. 157; Fidelity &c. Co. v. Chambers, (Va.) 24 S. E. 896; Lehman v. Great Eastern &c. Co., 39 N. Y. S. 912; Traders' &c. Co. v. Wagley, 74 Fed. 457; Anthony v. Mercantile &c. Co., 162 Mass. 354, 38 N. E. 973; Schneider v. Provident &c. Ins. Co., 24 Wis. 28, 1 Am. R. 157; Provident &c. Co. v. Martin, 32 Md. 310. 52 Tuttle v. Travelers' Ins. Co., 134 Mass. 175, 45 Am. R. 316, note. 453 3 Joyce Insurance, § 2624. 454 Shevlin v. American &c. Asso., 94 Wis. 180, 68 N. W. 866, 36 L. R. A. 52; Sargent v. Central &c. Ins. Co., 112 Wis. 29, 87 N. W. 796, 88 Am. St. 946; Follis v. United States &c. Asso., 62 Iowa 807, 62 N. W. 807; Piper v. Mercantile &c. Asso., 161 Mass. 589, 37 N. E. 759. 455 Morel v. Mississippi &c. Ins. Co.. 4 Bush (Ky.) 535; this case is criticized by Mr. May, and is clearly against the weight of authority, May Insurance, § 530. the evidence of what shall constitute such intention. Nor is the mere proof that the accident did happen sufficient to justify the finding of voluntary exposure; yet this may be said to be the principal if not the controlling element in determining the question. The true test has been stated thus: "If a person voluntarily places himself in a position where he is exposed to an obvious danger, and the precise injury happens to him which there is reason to fear, it cannot fairly be held that the language of the policy was not intended and understood to be applicable to such a case.' Many illustrative cases are found in which it was held that the evidence clearly, and in some of them conclusively showed that the exposure was voluntary and unnecessary.457 99456 § 2409. Voluntary exposure-Proof insufficient. It is equally difficult to state the rule as to what proof shall be insufficient to defeat a recovery on a policy on account of the voluntary exposure to danger by the assured. It is not a question for the insurer to determine, but as in life insurance, it may be a sufficient ground for refusing payment. In such case, or in any action on this kind of a policy where the voluntary exposure is interposed as a defense it is a question of fact to be determined by the jury. A controlling principle in such cases might be stated to the effect that where the evidence reveals an occurrence, which, resulting in injury or death, was to all appearances 456 Tuttle v. Travelers' Ins. Co., 134 Mass. 175, 45 Am. R. 316, note; Travelers' Ins. Co. v. Jones, 80 Ga. 541, 12 Am. St. 270; Smith v. Preferred &c. Asso., 104 Mich. 634, 62 N. W. 990; Keene v. New England &c. Asso., 161 Mass. 149, 36 N. E. 891; Duncan v. Preferred &c. Asso., 13 N. Y. S. 620; Manufacturers' &c. Co. v. Dorgan, 58 Fed. 945, 22 L. R. A. 620. 457 Equitable &c. Ins. Co. v. Osborn, 90 Ala. 201, 13 L. R. A. 267, note; Travelers' Ins. Co. v. Jones, 80 Ga. 541, 7 S. E. 83; Jones v. United States &c. Asso., 92 Iowa 64, 61 N. W. 485; Follis v. United States &c. Asso., 94 Iowa 435, 62 N. W. 807, 58 Am. St. 408; Badenfeld v. Massachusetts &c. Asso., 154 Mass. 77, 27 N. E. 769, 13 L. R. A. 263; Smith v. Preferred &c. Asso., 104 Mich. 634, 62 N. W. 990; Bean v. Employers' &c. Corp., 50 Mo. App. 459; Collins v. Fidelity &c. Co., 63 Mo. App. 253; Williams v. United States &c. Asso., 133 N. Y. 366, 31 N. E. 223; Reynolds v. Equitable &c. Asso., 1 N. Y. S. 738; Burkhard v. Travelers' Ins. Co., 102 Pa. St. 262, 48 Am. R. 205; Fidelity &c. Co. v. Chambers, 93 Va. 138, 24 S. E. 896, 40 L. R. A. 432, note; Travelers' Ins. Co. v. Seaver, 19 Wall. (U. S.) 531; Manufacturers' &c. Co. v. Dorgan, 58 Fed. 945, 22 L. R. A. 620; Cornish v. Accident Ins. Co., 23 Q. B. Div. 453; Lovell v. Accident Ins. Co., 3 Ins. L. J. 877; Commercial &c. Asso. v. Springsteen, 23 Ind. App. 657, 55 N. E. 973. deliberately contributed to, if not voluntarily prompted, the theory of accident under such circumstances is necessarily excluded. Under such circumstances the proof would be inconsistent with the theory of accident.458 It was substantially held in another case that it is sufficient when it appears from proof that the act was one which reasonable and ordinary prudence would pronounce dangerous, and when it further appears that the accident was the result of such act.459 It has been held that there is a distinction between a voluntary act and a voluntary exposure to danger. "Hidden danger may exist; yet the exposure thereto without any knowledge of the danger does not constitute a voluntary exposure to it. The approach to an unknown and unexpected danger does not make the act a voluntary exposure thereto. The result of the act does not necessarily determine the motive which prompted the action. The act may be voluntary; yet the exposure involuntary. The danger being unknown the injury is accidental."460 Many adjudicated cases illustrate the principles of the text.461 § 2410. External violence-Burden of proof.-Another usual provision found in accident policies is that the insurance does not cover death or personal injury unless the claimant shall establish by direct and positive proof that the death or injury was caused by external violence and accidental means. This condition is valid and binding on the beneficiary and in an action on such a policy the burden of proof is upon him to show that the death was caused by external, violent and accidental means. Just what degree or force of evidence is necessary to prove this fact cannot be stated as a rule of evidence; but in such an action it is held that the plaintiff has the benefit of the rules of law established for the guidance of courts and juries in the investigation and determination of facts. It is sufficient if he shows. 458 Williams v. United States &c. Asso., 133 N. Y. 366, 31 N. E. 222. 459 Fidelity &c. Co. v. Chambers, 93 Va. 138, 24 S. E. 896, 40 L. R. A. 432, note. 460 Burkhard v. Travelers' Ins. Co., 102 Pa. St. 262, 48 Am. R. 205. 461 Keene V. New England &c. Asso., 161 Mass. 149, 36 N. E. 891; Equitable &c. Ins. Co. v. Osborn, 90 Ala. 201, 9 So. 869, 13 L. R. A. 267, note; Follis v. United States &c. from all the evidence and circumstances that the death of the assured was caused by external violence and accidental means.462 § 2411. External signs of violence-Meaning.-The courts will not permit this requirement to operate as a bar to circumstantial evidence. It may often happen that no positive and direct proof can be furnished, but at the same time circumstances may plainly and almost certainly indicate that the assured was killed by accident. "Circumstantial evidence is regarded by the law as competent to prove any given fact; and sometimes it is as cogent and irresistible as direct and positive testimony." The courts will not permit such a clause to preclude them from jurisdiction and thereby prevent a recovery.463 So it has been held that the external and visible sign upon the body is only required to exist in case of bodily injuries which do not produce death.464 But where the accident produces death the plaintiff is not required to make proof of a visible external sign of the injury. It has been held that the dead body itself fulfils the requirement of external and visible signs that an injury was received.465 § 2412. External signs of violence-Proof sufficient.-While the courts admit that there must be an external and visible sign of the injury, yet this does not necessarily mean that the injury itself must be either external or visible. As stated by one court: "Visible signs of injury, within the meaning of this certificate, are not to be confined to broken limbs, or bruises on the surface of the body. There may be other external indications or evidence which are visible signs of internal injury. Complaint of pain is not a visible sign, because 462 Travelers' Ins. Co. v. McConkey, 127 U. S. 661, 8 Sup. Ct. 1360; Merritt v. Preferred &c. Asso., 98 Mich. 338; Southard v. Railway &c. Co., 34 Conn. 574; Whitlatch v. Fidelity &c. Co., 149 N. Y. 45, 43 N. E. 405. 463 Utter v. Travelers' Ins. Co., 65 Mich. 545, 32 N. W. 812, 8 Am. St. 913, note; Insurance Co. v. Bennett, 90 Tenn. 256, 25 Am. St. 685; Travelers' Ins. Co. v. Murray, 16 Colo. 290, 306, 25 Am. St. 267; Union &c. Co. v. Mondy, (Colo.) 71 Pac. 677; United States &c. Asso. v. Newman, 84 Va. 52, 3 S. E. 805; Mutual &c. Asso. v. Barry, 131 U. S. 100. 464 Paul v. Travelers' Ins. Co., 45 Hun (N. Y.) 313; Mallory v. Travelers' Ins. Co., 47 N. Y. 52, 7 Am. R. 410, note; Pickett v. Pacific &c. Ins. Co., 144 Pa. St. 79, 22 Atl. 871, 27 Am. St. 618. 445 McGlinchey v. Fidelity &c. Co., 80 Me. 251, 14 Atl. 13, 6 Am. St. 190; Paul v. Travelers' Ins. Co., 112 N. Y. 472, 20 N. E. 347, 8 Am. St. 758, note; United States &c. Asso. v. Newman, 84 Va. 52, 3 S. E. 805. |