Welts v. Connecticut Mutual Life Insurance

New York Supreme Court

Welts v. Connecticut Mutual Life Insurance

46 Barb. 412, 1866 N.Y. App. Div. LEXIS 71

DecidedSeptember 3, 1866

StatusPublished

This text of 46 Barb. 412 (Welts v. Connecticut Mutual Life Insurance) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Welts v. Connecticut Mutual Life Insurance, 46 Barb. 412, 1866 N.Y. App. Div. LEXIS 71 (N.Y. Super. Ct. 1866).

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Opinion

By the Court, B. Darwin Smith, J.

The circuit judge having taken the case from the jury and directed a verdict for the plaintiff, the only question arising upon the exception to such order and decision is, whether there was any evidence in the case sufficient to have warranted a verdict for the defendant.

Upon the facts of the case there is very little room for dispute. The plaintiff's husband was killed in the state of Tennessee, and south of the line of the thirty-sixth degree of north latitude, by a roving band of banditti, thieves and robbers, such as infested all the border states during the war. The death, occurring at such place and -under such circumstances, clearly avoids the policy, unless it is covered and saved by the permit or consent indorsed upon the policy, of the date of September 17, 1864.

By this permit Welts was permitted to pass, by the usual route and means of public travel, to any part of the United [422]*422States south-of the thirty-sixth degree of north latitude, and reside there, or return, during the term of one year from the date of such permit, without prejudice to said policy; provided, and the said permit was issued with the understanding and agreement of the parties in interest, “that the said Welts was not insured by said policy against death from any of the casualties or consequences of the war or rebellion, or from belligerent forces, in any place where he may be.” If this permit had not been given when all that part of the United States south of the thirty-sixth degree of north latitude was in a state of insurrection and war, and covered more or less with hostile armies," I should have considered that Welts came to his death from the causes covered by the proviso, and excepted from the policy. But he was permitted to go into any or all the insurrectionary states south of the line of the thirty-sixth degree of north latitudej the insurers well knowing, as" well as the assured, of the existence of the war of the rebellion in all of these states. The assured paid an extra premium for such permit. He was killed where, under the permit, he had a right to be. He was not killed by rebels in any encounter of arms. He was engaged in no battle, or-near any. He was twenty miles or more in the rear of the United States forces at Nashville, and it does not appear that there was any rebel force at the time north of the Cumberland. He was not exposed to any war peril, except such as existed through all the peaceful parts of Kentucky and Tennessee. Having the right to be in the place in which he was killed, the risk Welts then run was one covered by.the permit. He- was engaged in no warlike enterprise. He was simply rebuilding railroad bridges far in the rear of, and away from, any hostile forces, The band by which he was killed were, it seems, mere roving robbers, robbing union men and rebels alike. They did not interfere with the work in which Welts was engaged. They did not destroy railroads or bridges, or make prisoners of any persons in Welts’ company, or others. They merely robbed the members of the company of their [423]*423money, making no demonstrations indicating that they were confederate soldiers, or acting in the interest of the rebel government. It is true that Welts ran the peril of encountering such robbers by going into Tennessee, but this, I think, was part of the risk contemplated by the permit. The same peril would have been encountered if he had been traveling quietly in that section of country, simply passing from one place to another in any part of the United States south of the line of thirty-six degrees of north latitude.

[Monroe General Term, September 3, 1866.

This permit is to be construed with reference to the known condition of the country at the time it was given, and the parties must both be deemed to have known what the ordinary perils were in the country where the insured proposed to go, and their contract must be interpreted in the light of this assumption.

I think, therefore, that the proper disposition was made of the case at the circuit, and that a new trial should be denied, and judgment ordered upon the verdict.

Judgment for the plaintiff.

Welles, E. Eáí-lMn Smith and Johnson-, Justices.]

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By the Court, B. Darwin Smith, J.

The circuit judge having taken the case from the jury and directed a verdict for the plaintiff, the only question arising upon the exception to such order and decision is, whether there was any evidence in the case sufficient to have warranted a verdict for the defendant.

Upon the facts of the case there is very little room for dispute. The plaintiff's husband was killed in the state of Tennessee, and south of the line of the thirty-sixth degree of north latitude, by a roving band of banditti, thieves and robbers, such as infested all the border states during the war. The death, occurring at such place and -under such circumstances, clearly avoids the policy, unless it is covered and saved by the permit or consent indorsed upon the policy, of the date of September 17, 1864.

By this permit Welts was permitted to pass, by the usual route and means of public travel, to any part of the United [422]*422States south-of the thirty-sixth degree of north latitude, and reside there, or return, during the term of one year from the date of such permit, without prejudice to said policy; provided, and the said permit was issued with the understanding and agreement of the parties in interest, “that the said Welts was not insured by said policy against death from any of the casualties or consequences of the war or rebellion, or from belligerent forces, in any place where he may be.” If this permit had not been given when all that part of the United States south of the thirty-sixth degree of north latitude was in a state of insurrection and war, and covered more or less with hostile armies," I should have considered that Welts came to his death from the causes covered by the proviso, and excepted from the policy. But he was permitted to go into any or all the insurrectionary states south of the line of the thirty-sixth degree of north latitudej the insurers well knowing, as" well as the assured, of the existence of the war of the rebellion in all of these states. The assured paid an extra premium for such permit. He was killed where, under the permit, he had a right to be. He was not killed by rebels in any encounter of arms. He was engaged in no battle, or-near any. He was twenty miles or more in the rear of the United States forces at Nashville, and it does not appear that there was any rebel force at the time north of the Cumberland. He was not exposed to any war peril, except such as existed through all the peaceful parts of Kentucky and Tennessee. Having the right to be in the place in which he was killed, the risk Welts then run was one covered by.the permit. He- was engaged in no warlike enterprise. He was simply rebuilding railroad bridges far in the rear of, and away from, any hostile forces, The band by which he was killed were, it seems, mere roving robbers, robbing union men and rebels alike. They did not interfere with the work in which Welts was engaged. They did not destroy railroads or bridges, or make prisoners of any persons in Welts’ company, or others. They merely robbed the members of the company of their [423]*423money, making no demonstrations indicating that they were confederate soldiers, or acting in the interest of the rebel government. It is true that Welts ran the peril of encountering such robbers by going into Tennessee, but this, I think, was part of the risk contemplated by the permit. The same peril would have been encountered if he had been traveling quietly in that section of country, simply passing from one place to another in any part of the United States south of the line of thirty-six degrees of north latitude.

[Monroe General Term, September 3, 1866.

This permit is to be construed with reference to the known condition of the country at the time it was given, and the parties must both be deemed to have known what the ordinary perils were in the country where the insured proposed to go, and their contract must be interpreted in the light of this assumption.

I think, therefore, that the proper disposition was made of the case at the circuit, and that a new trial should be denied, and judgment ordered upon the verdict.

Judgment for the plaintiff.

Welles, E. Eáí-lMn Smith and Johnson-, Justices.]

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Bluebook (online)

46 Barb. 412, 1866 N.Y. App. Div. LEXIS 71, Counsel Stack Legal Research, https://law.counselstack.com/opinion/welts-v-connecticut-mutual-life-insurance-nysupct-1866.