Johnson v. London Guarantee & Accident Co. , 40 L.R.A. 440 ( 1897 )

Grant, J.

(after stating the facts). 1. Counsel urge that the court erred in not directing a verdict for the defendant, on the ground that the plaintiff had voluntarily exposed himself to unnecessary danger. The complete answer to this is that counsel preferred no such request at the trial. The case was tried upon the theory that upon this point the question belonged to the jury to decide. This question is therefore not before us.

2. Error is alleged upon the following portion of the instructions:

‘ ‘ In order to make his act upon this occasion a voluntary exposure to unnecessary danger, he must have acted with gross or wanton negligence, or otherwise it was not a voluntary exposure to unnecessary danger.”

In this connection the court also charged as follows:

“I charge you also that a voluntary exposure means a conscious or intentional exposure. If the insured in this case believed or had good reason to believe that he was endangering his safety by attempting to drive this bull from this, inclosure, then I charge you that he cannot recover. If, on the other hand, he did not believe or had any reason to believe that there was any danger to himself in that attempt, then I charge you that it was not a voluntary exposure to unnecessary danger.”

This chai’ge is sustained by the authorities. Manufacturers’ Acc. Indemnity Co. v. Dorgan, 58 Fed. 952, 7 C. C. A. 588. See, also, 2 Bac. Ben. Soc. § 492, where will be found a full citation of authorities.

3. Was plaintiff engaged in an occupation more hazardous than that in which he was classified in the policy ? The defendant requested the court to instruct the jury that plaintiff was in fact engaged' in the more hazardous employment; also, that if they found that he was engaged in another occupation in addition to that of secretary and treasurer, and did not disclose that fact to the defendant, he could recover only the lesser sum under the more hazardous risk. These requests were refused, and the jury instructed that if the plaintiff had ceased to belong to the occupation in which he was insured, and had, in fact, become a farmer, he could only recover for the more hazardous occupation.

The question is one of fact, to be determined by the court only when there is no dispute as to the evidence, and but one rational conclusion can be drawn therefrom. A man may be engaged in two or more occupations, in which case he can only recover for injury received in the employment for which he is insured. Standard Life & Acc. Ins. Co. v. Taylor, 12 Tex. Civ. App. 386. The provisions of the policy in that case were similar to those in this. Taylor was insured as a blacksmith, employed, by a railroad company. In fact, he also acted as a switchman and car coupler, occupations more hazardous than blacksmithing. Held, that recovery for injuries received while acting as a switchman or coupler must be limited to the increased hazard. We think there was no evidence tending to show that plaintiff was a farmer, within the terms of the policy, until his employers, Hull Bros., had ceased to do business. The fact that he lived upon his farm, and carried it on through others, does not make him a “farmer,” within the meaning of that term as used in these accident policies. He was at home only from Saturday night to Monday morning, and on Wednesday night, of each week. There is no testimony to show that during that time he was engaged in the actual work of a farmer, so as to incur the more hazardous risks incident to that business.

It does not follow that plaintiff’s policy lapsed when his regular employment with Hull Bros, ceased, or that he had necessarily become a farmer or engaged in the business of farming by spending his time at his home when the necessity for his being in Detroit had ceased. Stone’s Adm’rs v. U. S. Casualty Co., 34 N. J. Law, 371. In that case a school teacher, out of employment, had let contracts for the erection of two dwellings for his own use, and, while overlooking one, fell, and was killed. Held, that he had not changed his employment, but was engaged in an individual act, which did not avoid the policy. See, also, 2 Bac. Ben. Soc. §491; Hess v. Accident Ass’n, 112 Mich. 196. There was testimony tending to show that plaintiff had not changed his occupation. The letters, upon which considerable reliance is placed, were not written by the plaintiff himself, or dictated by him, but were written by his sister-in-law while he was suffering from his injuries. They are explained by him and by her in such a manner that they were properly left to the jury, in connection with the other testimony, to determine their exact meaning. There was sufficient conflict in the evidence to justify the submission of the question to the jury.

The judgment is affirmed.

The other Justices concurred.