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It is argued by counsel for appellant that these checks were stale and overdue when transferred to the plaintiff, and are, therefore, subject to any equitable defense which might have been available so long as they remained in the hands of the payee; but the decided weight of authority is opposed to this claim. It is to be borne in mind that no question as to the discharge of an indorser by delay in presentation, or by the failure of the bank meantime on which the checks were drawn, arises here, but the attack is made by the maker solely upon the consideration. As before stated, the checks were drawn and dated October 26th, at St. Paul, and were cashed about five days later (six days at most) in Denver, Colorado, and there were no circumstances, except the period of time which had 509 passed, and the fact that the payee was attempting to cash the checks at a point some distance from the city in which they were drawn, to put plaintiff on his guard.
In these days of large business enterprises and extraordinary facilities for traveling, there was nothing suspicious in the fact that the checks were presented at a city distant from that in which they were drawn and made payable; and, as to the time, the rule is well settled, that a holder who, in good faith and for value, takes a check several days after it is drawn, receives it without being subject to defenses of which he had no notice before or at the time his title accrues: Morse on Banks and Banking, sec. 442, and cases cited. In one of these cases (Rothschild v. Corney, 9 Barn. & C. 389), the check in dispute was taken six days after date. In another (Ames v. Meriam, 98 Mass. 294), ten days had elapsed. These views dispose of the appeal.
CHECKS-LAW GOVERNING.-A bank check is much the same as an inland bill of exchange, and is governed generally by the law applicable to such bills and to promissory notes: Barnet v. Smith, 30 N. H. 256; 64 Am. Dec. 290, and note; Bickford v. First Nat. Bank, 42 III. 238; 89 Am. Dec. 436; Barbour v. Bayon, 5 La. Ann. 304; 52 Am. Dec. 593; Smith v. Jones, 20 Wend. 192; 32 Am. Dec. 527.
CHECKS-PRESENTMENT.-A bank check should be presented for payment within a reasonable time. Otherwise, the delay is at the peril of the payee: Industrial Trust etc. Co. v, Weakley, 103 Ala. 458; 49 Am. St. Rep. 45, and note. The general rule of diligence as to the presentation of a check received in a place distant from that of the bank upon which it is drawn is, that the check must be forwarded to the latter place on the next secular day after its receipt, and be prosented for payment on the day after it has reached such place by due course of mail: Gifford v. Hardell, 88 Wis. 538; 43 Am. St. Rep. 925, and Qote.
MEADOWS V. PACIFIO Mutual LIFE INSURANCE Co.
(129 MISSOURI, 76.) INSURANCE-ACCIDENT-BURDEN OF PROOF.-Under a policy insuring against death from such violent and accidental injures as shall externally be visible on the body, and which alone cause death, evidence that the insured was found dead and mangled on a railroad track, establishes a prima facie case, and casts the bur. den of proof upon the insurer to show that death resulted from a violation of some of the conditions in the policy specially pleaded in defense.
INSURANCE ACCIDENT - PRESUMPTION.- A person whose death is caused by injury is presumed to have been in the exercise of ordinary care at the time of his death. This presumption is not rebutted by the unexplained fact that his body was found mangled upon a railroad track.
ALTHOUGH INSTRUCTIONS GIVEN FOR PLAINTIFF IGNORE facts tending to establish the defense, the defendant can. not complain, if the theory of the defense is fully explained in 10structions given at his request.
INSURANCE - ACCIDENT – ROADBED.-A space between rallroad tracks, constituting a well-beaten, level, and smooth walk 18 not a part of the roadbed, within the meaning of an accident insurance policy, not insuring against accidents "on rallroad bridge, trestle, or roadbed."
Dowe, Johnson & Rusk, for the appellant.
80 GANTT, P.J. This is an action on an accident insurance policy by the administrator of the assured, Daniel A. Meadows, deceased, for five thousand dollars. The petition contains the asual averments, and alleges that said Daniel A. Meadows lost
his life, on or about July 30,1892, by being "accidentally run upon and over by a car, or train of cars, on the track of the Hannibal & St. Joseph Railroad Company, at the city of Chillicothe, in the state of Missouri," and prayed judgment for the sum assured.
The answer is a general denial and a plea of the following conditions in the policy, to wit: “The claimant shall establish affirmatively, under any claim or proceeding thereunder, that the injury or death resulted from actual accident, according to the policy.” And further: "The insured agrees to use due diligence for personal safety and protection; and this insurance does not cover, and the company will not be liable for, injury nor death while engaged in, caused by, resulting from, or attributable, partially or wholly, to any of the following causes: Voluntary exposure to unnecessary danger or perilous venture, violating law or the rules of any company or corporation, intentional injuries inflicted by the insured or any other person, or entering, or trying to enter or 81 leave, any moving conveyance propelled by steam power, or riding in or upon any such conveyance not provided for the transportation of passengers, or being upon a railroad bridge, trestle, or roadbed."
The answer pleaded that the deceased was acting in violation of said conditions at the time of the accident, and that his death occurred by reason of such violation, and by reason of voluntary exposure to unnecessary danger, and by reason of being upon the roadbed of the Hannibal & St. Joseph railroad at Chillicothe, Missouri.
The policy contained the conditions pleaded in the answer, and a great number of other conditions exempting the company from liability for accidents of almost every conceivable character. Indeed, it is somewhat difficult to name an accident, as society is now constituted, for which defendant would be liable, if a strict technical construction is indulged as to each of these conditions. The sixth clause of the conditions indorsed upon the policy is as follows:
“6. This insurance does not cover, and the company will not be liable for, disappearances, nor injury (nor death resulting from the same) of which there is no visible mark upon the body of the insured, the body itself, in case of death, not being considered buch mark produced at the time of and by the accident; nor injury nor death while engaged in, caused by, resulting from, or attributable, partially or wholly, to any of the following causes: Disease or bodily infirmity, or act committed by the insured while under mental aberration produced by disease or bodily infirmity, fits, vertigo, hernia, sleep walking, intoxication, use of narcotica
or anesthetics, medical or surgical treatment (amputation rendered necessary by the injury, and made within ninety days, excepted), sunstroke, freezing, taking of poison, contact with poisonous substances, 82 inhalation of gas or vapor (voluntary or otherwise), war or riot, quarreling or dueling, fighting, wrestling, racing, excessive lifting, voluntary overexertion, gymnastic sports (except for amusement), suicide (sane or insane), any vicious act, voluntary exposure to unnecessary danger or perilous venture (unless in the humane effort to save human life), violating law or the rules of any company or corporation, intentional injuries inflicted Ly the insured or any other person (except as hereinafter otherwise provided), or entering, or trying to enter or leave, any moving conveyance propelled by steam power (except cable or electric cars), or riding in or upon any such conveyance not provided for the transportation of passengers, or being upon a railroad bridge, trestle, or roadbed (railroad officers and employees while engaged in their prescribed duties as such excepted).”
There was a reply denying that deceased had broken any condition of the policy. Plaintiff obtained judgment, and defendant appeals. The facts are as follows:
It was admitted at the trial that plaintiff was the qualified and acting administrator of the estate of Daniel Meadows; that notice of his death was given, and that due proof was furnished, as required by the policy.
Daniel Meadows, at the time of his death, was a stockman, fifty-nine years old, engaged in buying and selling mules. On the night of his death, he went on the Wabash railroad from Gallatin to Chillicothe. At Gallatin he and witness Noll had a conversation. He said he lived in St. Joseph, and seemed very anxious to get home, and, on being asked what he was going to Chillicothe for, when he could take the Rock Island road for bome, said he could go to Chillicothe and catch a train there almost any time, and he could not 83 on the Rock Island. At Chillicothe about 1 A. M. that night, he talked with John Fitzpatrick, the night telegraph operator, at the window at the Wabash depot, for a few minutes, and inquired when he could get a train for St. Joseph, and was told he could get a passenger train at 4:20 A. M. On being told that there was a freight train there, but it would not carry passengers, he said: "I am a stockman, and they all know me. I am a stockman, and they will carry me.” He then left and went west from the depot to Elm street, thence south on Elm street. At this time an eastbound freight train was standing on the north track of the Hannibal & St.
Joseph railroad, east of Elm street, and a westbound train on the sidetrack.
Ten or fifteen minutes afterward, the night operator, with whom he had been talking, heard a yell, as if from someone in distress, and at the same time heard a train moving. It was a very dark night. Both the east and west bound freights were there in the yards, the eastbound train being on the north and main track. About eight car lengths east of where the cabooze of that eastbound freight stood that night, and about opposite the usual place for the westbound freight to stand on the sidetrack, the body was afterward found, about 2 A. M., cut in two, the lower part between the rails of the main track, and the upper part between the passing track and the main track. The body was cut diagonally across. The body was first found by John Slaughter, a brakeman on the westbound freight train. That train pulled into the yards and stopped with its engine at the tank, fifteen or twenty yards west of the Hannibal depot, to take water, and then pulled in on the passing track to wait for the eastbound train to pull out. The two trains were not on the tracks together for any length of time. After the eastbound train had gone, Slaughter started 84 ahead to change the switch, and found the legs of the body between the rails of the north track, and the upper part of the body just south of the south rail of that track. Slaughter touched the face of the body, and found it not yet cold.
Two eastbound freights passed through Chillicothe that night The first one met the westbound freight ten miles east of Chillicothe; it stopped at Chillicothe about five minutes, did no switching; it pulled in slowly with the headlight burning; the engineer could have seen a man, or the body of a man, on the track, but saw nothing of the kind. He examined the wheels of his engine at Brookfield, when he heard of the accident, and saw no indications of having run over a man. The other east going freight had between fourteen and nineteen cars; it did no switching there. The engine stopped for ten or fifteen minutes at the tank, ten or fifteen feet east of the depot, which left the hind end of the train just east, or a car length or two east, of Elm street. At the rate at which it ran in, the engine, in the opinion of the engineer, would have thrown a man from the track. The headlight was burning, and the electric light was burning. The engineer could have seen a man, or the body of a man, on the zack in front of his engine, if one had been there, but he 88T nothing of the kind.