Campbell v. Great Eastern Casualty Co. ( 1920 )

Opinion by

Orlady, P. J.,

Charles F. Campbell, the plaintiff’s husband, was insured under an accident policy in the defendant company, “against the effects of bodily injuries, caused directly and independently of all other causes by external violent and accidental means,” etc. In Ms application lie stated Ms occupation to be “superintendent, supervising only,” and the duties incident to this occupation were described as “superintendent, supervising only.” He was classified under the rules of the company with a rating by which they agreed to pay for a loss of life, the sum of $500. On the trial it was shown he was a foreman of a light, heat and power company, and discharged the duties of a foreman in doing all kinds of electric work, except that he did not climb poles.

On the evening of December 1, 1917, he went alone to a lot, adjoining the power house, to repair a transformer. After an absence of an hour he was found dead, lying on the ground at the base of the transformer. No person, was present at the time of his death. It is referred to by both parties as accidental, and it was clearly shown, that at the time he started to do the repair work, the transformer had been disconnected by the superintendent, and there were no marks on his person to indicate the cause of his death. It was conceded, that the burden was on the defendant to show that, at the time of his death he was engaged in an act that was not insurable under the policy. There was no evidence in the case showing how long the act which he started out to do would probably have required, to show how he fell to the ground, how long he was upon the ground before he was found, that he had completed his work and returned and subsequently come in contact with a wire, or whether he was placed in contact with a live wire when his work upon the uncharged transformer was completed, while in the act of coming away from his work. The trial judge, after a fair review of the testimony, said, “Can you find, under these circumstances, by the weight and fair preponderance of the evidence, that the deceased was engaged in an act that was not insurable at the time of his death? If you do, then your verdict must be in favor of the defendant.” The converse proposition was presented, that if the jury found that his death was accidental, and occurred in an employment which was insurable, while discharging the duties of superintendent, supervising only, and that any manual labor in which he was engaged at the time of the accident was merely casual and incidental to his employment, and not so far out of its scope as to lead reasonable men to know that it was beyond the scope of the term superintendent, supervising only, then the plaintiff is entitled to recover.

The court held, that the question of proportionate liability did not arise, and we think rightly, for the reason that there was no proof at all of the cause of death, or the character of work in which he was then engaged. The case was very thoroughly tried by able counsel, and fairly and adequately submitted in a charge which presented the questions of fact in such a manner that the jury could not be in doubt as to the respective contentions of the parties. It was purely a question of fact for their solution. The opinion of the trial judge in discharging rules for a new trial and for judgment non obstante veredicto, is a complete answer to the assignments of error as urged.

The judgment is affirmed.