ises to pay in lawful money of the United States, at the banking office of Preston, Kean & Co., in the city of Chicago, Illinois, on December 1st, 1893, or at any time before that date, at the pleasure of said district, with interest at seven per cent. per annum, payable semiannually, on presentation and surrender, at the said bank, of the proper coupons hereto annexed, as they severally mature, on the first day of June and December in each year; and for the payment of which principal and interest the full faith, credit, and honor of said independent school district is hereby irrevocably pledged. This bond is one of a series of five bonds of five hundred dollars each, making in the aggregate the sum of two thousand five hundred dollars, issued for school purposes, under the provisions of section 1822 of the Code of Iowa of 1880, the same being authorized by a vote of the people at an election legally held on the second day of October, 1883, as required by law, and this bond is executed and issued in all respects in accordance with the requirements of the constitution and laws of the state of Iowa. The aggregate indebtedness of the aforesaid independent school district for all purposes whatsoever, including this bond, does not exceed the limit fixed by law. In witness whereof, the board of directors of the aforesaid district has caused the signatures of the president and secretary of the said board to be affixed hereto, and the same to be registered and countersigned by the treasurer of the district aforesaid, this 1st day of December, A. D. 1883. J. C. Thomas, President. Registered and countersigned by W. A. Swiler, Treasurer. (3) The bonds in suit each have six interest coupons attached, being coupons Nos. 15 to 20, inclusive, said coupons reading as follows, each coupon being same as that hereinafter copied, except as to the number of coupon and number of bond to which attached, and date of maturity, said dates of maturity extending (by semiannual periods) from June 1, 1891, to December 1, 1893, inclusive,to wit: $17.50. Interest Coupon, Bond No. 2. (15.) Angus, December 1st, 1883. The independent school district of Angus, Boone county, state of Iowa, will pay to bearer, June 1st, 1891, at the banking office of Preston, Kean & Co., Chicago, Illinois, the sum of seventeen dollars and fifty cents, for interest due on the bond of said district numbered and dated as above. J. C. Thomas, President. (4) Said bonds and coupons were negotiated by said defendant, and plaintiff is the owner and bona fide holder, before maturity, for due consideration, of the four bonds in suit, and of the said six interest coupons attached to each of said bonds. (5) The evidence does not show that, at the time said bonds in suit were issued by said defendant, said defendant was indebted in any manner, or for any purpose, to an amount in the aggregate exceeding 5 per centum on the value of the taxable property within said defendant corporation, as ascertained by the last state and county tax lists previous to the issuance of said bonds, which said value I find to be $110,905. (6) I am not able to find affirmatively from the evidence what was the exact amount of indebtedness of said defendant which, at time of issue of said series of bonds, was outstanding as the valid indebtedness of said defendant, the accounts of said defendant having been very inaccurately kept, and the evidence tending to show that at least a portion of the records of said defendant relating thereto is lost. (7) Under rulings reserved to objections at the time made by plaintiff, evidence was introduced as to whether or not an election had been held, as recited in said bonds, and as to whether the board of directors of defendant passed any resolution or took any other action relating to or authorizing the issue of said bonds. From said. evidence I am not able to find that no such election was so held, or that the board of defendant failed to take the proper steps to make a valid issue of said bonds. Accepting said recital in said bonds as prima facie evidence of the facts therein recited, I find from all the evidence that an election was held as in said bonds recited, and said bonds were duly issued by said district. (8) Under rulings reserved to objections at the time made by defendant, evidence was introduced relating to a former issue of bonds by defendant, which evidence sustains the following finding, which is here inserted at request of defendant, viz.: On September 27, 1889, the Aetna Life Insurance Company instituted in the district court of the state of Iowa in and for the county of Boone an action against defendant herein upon certain coupons detached from bonds by defendant issued on December 6, 1882, and June 5, 1883. In said action defendant filed its answer and counterclaim, wherein defendant alleged that the coupons on which said action was founded were a part of, and had been detached from, certain bonds issued by said defendant, to wit, bonds in the sum of $1,500. issued by defendant on December 6, 1882, and in the sum of $3,500, issued by defendant on June 5, 1883. Defendant also alleged therein that said bonds so issued were void, in that the same, when so issued, were beyond the limit of indebtedness which said defendant was permitted to incur under the constitution of the state of Iowa, except as to the sum of $722.10 thereof. And defendant therein prayed affirmative judgment that said coupons be declared illegal and void, and be surrendered for cancellation, and that said plaintiff therein be restrained from disposing of the said bonds of which said coupons had formed a part; that a trial was had on the merits, and said district court of Boone county adjudged and decreed that said bonds so issued as aforesaid on December 6, 1882, and June 5, 1883, were in excess of said constitutional limit of indebtedness which defendant was permitted to incur (except as to the sum of $861.64), and were illegal and void as to the entire amount thereof in excess of said sum of $861.64, and that the same be by said plaintiff surrendered upon payment by defendant of said sum of $861.64, and be canceled; that said defendant paid said sum, so adjudged valid, and said plaintiff thereupon surrendered to defendant said bonds and coupons, and same were canceled. (9) The principal of bonds in suit herein is now due, amounting to $2,000, and, with interest thereon at 7 per cent. from December 1, 1893, to wit, $446.83, aggregating $2,446.83 on February 10, 1897, is due and unpaid. The coupons herein in suit are due and unpaid, and each coupon is entitled to draw 6 per cent. per annum from its date on amount of said coupon; and said coupons, 78 F.-48 and interest thereon, aggregate $531.90 on February 10, 1897. The total amount due plaintiff February 10, 1897, is $2,978.73. Conclusions of Law. 1. Defendant, under recitals contained in the bonds in suit, is estopped from claiming (1) that an election, as recited in said bonds, was not held; and (2) that defendant's board of directors failed or omitted to pass such resolutions, or take such other steps, as may have been required to make the issuing of said bonds a valid issue. 2. Plaintiff is entitled to recover herein of and from defendant the sum of $2,978.73, with interest from February 10, 1897, as follows: upon $2,000 7 per cent., and $978.73 6 per cent., with costs of this suit. Let judgment be entered accordingly; to all of which defendant excepts. TRAVELERS' INS. CO. OF HARTFORD v. RANDOLPH. (Circuit Court of Appeals, Sixth Circuit. February 2, 1897.) No. 439. 1. TRIAL-PEREMPTORY INSTRUCTION-WAIVER. The failure of a defendant, at the close of the plaintiff's evidence, to ask a peremptory instruction, will not of itself preclude such a motion at the close of the whole evidence. A peremptory instruction should not be given to a jury unless, upon a survey of the whole evidence, and giving effect to every inference to be fairly or reasonably drawn from it, the case is palpably for the party asking such instruction; and a case cannot properly be withdrawn from the jury because, in the judgment of the court, there is a preponderance of evidence in favor of the party asking such instruction. Railway Co. v. Lowery, 20 C. C. A. 596, 74 Fed. 463, reaffirmed. 3. ACCIDENT INSURANCE-EXCEPTIONS FROM RISK-VOLUNTARY EXPOSURE. The expression "voluntary exposure to unnecessary danger," used in stating the exceptions to the liability of an insurance company upon an accident policy, refers only to dangers of a real, substantial character, which the insured recognized, but to which he, nevertheless, purposely and consciously exposed himself, intending at the time to assume all the risks of the situation. 4. SAME QUESTION FOR JURY. Under a policy of accident insurance, which expressly declares that the insurance does not cover entering or trying to enter or leave a moving conveyance using steam as a motive power, and which also excepts injuries due to voluntary exposure to unnecessary danger, voluntary riding upon the platform of a rapidly moving railroad car, though there may be no necessity therefor, is not, in itself and as matter of law, a voluntary exposure to unnecessary danger, but presents a question of fact to be determined by the jury under all the evidence. 5. SAME-NEGLIGENCE OF INSURED. Cases determining that certain acts constitute contributory negligence. such as to defeat a recovery for personal injuries claimed to have been caused by the negligence of another, have no application to actions upon accident insurance policies which do not in terms exempt the insurer from liability for injuries caused by the negligence of the insured, since the liability upon such policies depends upon contract, and the negligence of the plaintiff is no defense unless expressly made so. 6. SAME. Where an accident insurance policy exempts the insurer from liability for injuries received while violating rules of a corporation, it is proper, in an action on the policy, to leave to the jury, upon all the evidence, the question whether the insured knew of a rule of a corporation which it is claimed he was violating when injured, and to charge them that, in order for the insured to be bound by the rule, it must be one which the corporation enforced or used reasonable effort to enforce. In Error to the Circuit Court of the United States for the Western District of Tennessee. J. K. Flippin and Luke E. Wright, for plaintiff in error. Geo. Randolph, Samuel Holloway, and Wm. M. Randolph, for defendant in error. Before HARLAN, Circuit Justice, LURTON, Circuit Judge, and SAGE, District Judge. HARLAN, Circuit Justice. This is an action upon insurance contracts evidenced by an annual policy and two accident tickets issued to Albert G. Mitchell by the Travelers' Insurance Company of Hartford, Conn. There were a verdict and judgment for the plaintiff. By its policy of June 5, 1894, that company insured Mitchell, a bookkeeper by occupation, in the sum of $50 per week, against loss of time, not exceeding 26 consecutive weeks, resulting from bodily. injuries effected through external, violent, and accidental means, which should, independently of all other causes, immediately and wholly disable him from transacting any kind of business pertaining to his occupation. If death ensued from such injuries alone within 90 days, then the company agreed to pay the sum of $10,000 to the legal representatives of the assured. But the policy declared that the insurance did not cover "disappearance; nor suicide, sane or insane; nor injuries of which there is no visible mark on the body (the body itself in case of death not being deemed such mark); nor accident, nor death, nor loss of limb or sight, nor disability, resulting wholly or partly, directly or indirectly, from any of the following causes, or while so engaged or affected: Disease or bodily infirmity; hernia; fits; vertigo; sleep-walking; medical or surgical treatment, except amputations necessitated solely by injuries, and made within ninety days after accident; intoxication or narcotics; voluntary or involuntary taking of poison, or contact with poisonous substances, or inhaling of any gas or vapor; sunstroke or freezing; dueling or fighting; war or riot; intentional injuries (inflicted by the insured or by any other person); voluntary overexertion; violating law; violating rules of a corporation; voluntary exposure to unnecessary danger; expeditions into wild and uncivilized countries; entering or trying to enter or leave a moving conveyance using steam as a motive power, except cable cars; riding in or on any conveyance not provided for transportation of passengers; walking or being on a railway bridge or roadbed (railway employés excepted)." The same provision:, substantially, are set forth in the accident tickets issued by the company. The defendant pleaded that it did not owe the plaintiff in manner and form as alleged, and that proper proofs of death were not furnished. It also pleaded: That the assured committed suicide on the 9th day of November, 1894, by "voluntarily, and with intent to take his life, jumping off" a train of cars, en route from St. Louis to Memphis, Tenn., and which at the time was moving 35 miles an hour, he being a passenger on such train. That the assured "intentionally and of a purpose sprang or jumped" from said train, with the intent of inflicting injury upon himself, and, as a result thereof, he was dashed against the ground with great violence, receiving injuries from which he shortly afterwards died. That when the train approached Memphis, at the rate of 35 miles an hour, the assured voluntarily and unnecessarily left his seat in the sleeping car, where he was safe and free from danger, and went out of such car and upon its platform, thence to the rear platform of the next car ahead, thence to the lower step of the lastnamed platform, the same being a very dangerous place, from which, by any sudden jar or movement of the car, he was liable to fall or be thrown from the train; that, in standing on said lower step of the platform, it was necessary for him to hold to the hand railing provided on each side for the use of persons getting off and on the car; that while in that position, the cars moving at a high rate of speed, he was in great danger of losing his hold by reason of the moving of the car or from other causes, and of being thrown from the step, and injured or killed, "all of which danger was obvious and well known to the said Mitchell"; that the assured went into said place of great and unnecessary danger without any reasonable cause therefor, and, while there, "fell or sprang" from the car step, receiving great injuries, from which he shortly died; and that, by reason of this voluntary exposure of the assured to unnecessary danger, the contract of insurance between him and the defendant did not attach or become operative, nor cover the inju ries and resulting death of the assured. That the insured, while the car was moving at the rate of 35 miles an hour, attempted to leave, and did leave, the same, by "stepping or leaping" therefrom, and thereby he was thrown to the ground with great violence, and received injuries from which he shortly thereafter died. That while standing upon the lower step of the rear platform of the car immediately in front of the sleeping car, as above stated, the insured was intoxicated, and, being so intoxicated, either "fell or sprang" from such step when the car was moving at the above rate of speed, and was dashed violently against the ground, receiving fatal injuries, from which he shortly died. And That the assured came to his death by reason of his standing upon the platform, as above stated, in violation of a rule of the railroad company which was then, and had been for many years, |