Rommel v. National Travelers Benefit Ass'n
Rommel v. National Travelers Benefit Ass'n
Opinion of the Court
“This policy shall not cover * * * injuries occasioned by * * exposure to obvious risk * * * to an amount exceeding $100.”
The circumstances surrounding his death are, in substance, as follows:
Mr. Rommel was county engineer of Mahaska County; and, an ice gorge having formed in the Des Moines River near Oskaloosa, causing the channel to become obstructed
On the day in question, deceased, 'with Mr. Ruggenberg, Mr. Reynolds, and Mr. Thomas as companions, rowed across the first channel to the island in two small boats, but only Rommel and Thomas attempted to cross the channel from the island to the ice gorge. They appear to have crossed the first channel to the island without serious difficulty. The witnesses described the channel between flic island and the gorge as containing many trees and shrubs, and the water as flowing very swiftly. This is also indicated by the difficulty encountered by Thomas and the deceased in launching the boat for the trip. The other two men assisted them in getting into it; and an oar, placed in the water by Thomas for the purpose of holding the boat, was immediaiely carried to the surface by the swiftness of the stream. Tn crossing this channel, they abandoned their oars, and propelled the boat by taking hold of trees and forcing it with their feet. The same method was pursued in attempting to return to the island; but, when deceased took hold of a tree, one end of the boat tipped, and passed from under him. His companion, who testified that the water was not very swift at the point where this occurred,, adjusted the boat, enabling Rommel to get into it, and they proceeded on their way toward the island. Deceased again took hold of a tree, causing one end of the boat to settle and again pass out from under him. Thomas then grabbed the same tree, and the boat passed from under 'them beyond their reach. Thomas ap
Appellee, for defense, relies upon the provision , of the policy above quoted. The evidence is conflicting as to some minor details, but not as to the more important facts involved. While the county engineer performs his duties under the direction of the board of supervisors, they are, nevertheless, prescribed by statute. The evidence does not show that, at the time in question, deceased was engaged in the performance of his duties as county engineer, or that he was acting under the direction or command of the board of supervisors. Whatever he did was voluntary on his part, but with the knowledge and apparent acquiescence of the board of supervisors. There was testimony tending to show that deceased was importuned by various persons affected by the flood to do something to relieve the situation, and that his efforts were inspired rather more by these importunities and the desire to be relieved therefrom than by the necessity of performing official duties. It is quite clear that the risk assumed by deceased was not incident to his office or occupation. Section 1527-s3, Supplemental Supplement, 1915, and following sections.
II. That the deceased entered upon a dangerous venture, when he and Thomas undertook to cross the channel between the island and the ice gorge, conclusively appears from the situation as described by the witnesses, and the unfortunate consequences thát followed. This alone will not, however, prevent plaintiff’s recovery. The risk assumed, to defeat recovery, must have been an obvious one. The exception contained in the policy is for “injuries occasioned
“The words ‘obvious risk’ designate not only a risk which may be readily perceived by the eye or senses, but also one that may be perceived by the intellect.” Diddle v. Continental Casualty Co., 65 W. Va. 170 (63 S. E. 962).
This court, in Correll v. National Accident Society, 139 Iowa 36, defined an apparent danger as follows:
“ ‘An apparent danger’ is one which is capable of being seen or otherwise comprehended through the medium of the senses. Webster’s Dictionary; Century Dictionary. And to constitute a voluntary or unnecessary exposure, the danger must either have been known to the insured in fact or one which, in the exercise of his faculties as an ordinarily prudent person, should in reason have been known to him.”
And in Jones v. United States Mut. Acc. Assn., 92 Iowa 652, 655, it is said that the acts of the injured must have been such as reasonable and ordinary prudence would pronounce dangerous. For the rule as stated in other jurisdictions, see Small v. Travelers Protective Assn., supra; Combs v. Colonial Casualty Co., supra; National Life & Acc. Ins. Co. v. Lokey, 166 Ala. 174 (52 So. 45); Diddle v. Continental Casualty Co., supra; Shevlin v. American Mut. Acc. Assn., 94 Wis. 180 (36 L. R. A. 52); Garcelon v. Commercial Trav. Acc. Assn., 195 Mass. 531 (81 N. E. 201); Rebman v. General Acc. Ins. Co., 217 Pa. 518 (66 Atl. 859); Price v. Standard Life & Acc. Ins. Co., 92 Minn. 238 (99 N. W. 887).
The question, presented, therefore, is: Was the hazard or risk assumed by deceased obvious, or so apparent to a rea
We have made a careful examination of the evidence, and are convinced that deceased exposed himself to a hazard that must have been obvious and apparent to a reasonably prudent and cautious person; and that, upon this question, reasonable minds could not differ; and that, had a verdict been returned in favor of the plaintiff for the amount of the policy, it could not be permitted to stand.
It is also urged on behalf of appellant that deceased was an experienced boatman, and believed from his experience that there was no apparent hazard or danger in crossing either of the channels; but we are unable to agree with this contention. We think it apparent that there was obvious risk, and that, under the clause of the policy above quoted, the court did not err in directing a verdict for plaintiff for the smaller sum, allowed by the policy.
The judgment of the lower court is, accordingly,— Affirmed.
Reference
- Full Case Name
- Stella B. Rommel v. National Travelers Benefit Association
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- 2 cases
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- Published