DocketNumber: No. 4,457
Citation Numbers: 61 Mont. 58, 201 P. 284, 22 A.L.R. 777, 1921 Mont. LEXIS 7
Judges: Brantly, Cooper, Galen, Holloway, Reynolds
Filed Date: 10/10/1921
Status: Precedential
Modified Date: 10/19/2024
• delivered the opinion of the court.
William 0. Ebeling was insured under a policy which classified occupations according to their respective hazards, and designated the amount of insurance which a given premium paid in advance would purchase upon the life of one engaged
About August 30, 1917, Ebeling engaged as a tender in transit of a shipment of livestock from Little Horn, Montana,
There is not any conflict in the evidence, and for all practical purposes this appeal may be considered as though the case had been submitted upon an agreed statement of facts. The only question for determination is: Was the insured, at the time of his injury, doing any act or thing pertaining to the more hazardous occupation, tender in transit? If he was, the amount of recovery must be reduced to $275. If he was not, the judgment must be affirmed. There is not any conflict of authority respecting the general rules of law applicable to a ease of this character, but some conflict growing out of the application of well-settled rules to the facts, and this conflict or confusion arises from the proper construction of the provision in policies which diminishes liability in the event that the injury occurs while the insured is doing any act or thing pertaining to an occupation classified as more hazardous than the one for which the insured was accepted. The earlier accident policies provided only for diminished liability in the event the insured, at the time of his injury, had changed his occupation to one classified as more hazardous, and the courts held generally that the term “changed” was employed in the sense of substitution,
In Holiday v. American Mutual Acc. Assn., 103 Iowa, 178, 64 Am. St. Rep. 170, 72 N. W. 448, and in Zantow v. Old Line Acc. Ins. Co., 104 Neb. 655, 178 N. W. 507, recovery was permitted in each instance for the face of the policy, under circumstances not materially different from those involved in the present inquiry, and those two cases are the only ones disclosed by our research which would warrant recovery in this case for the larger amount. We are unable, however, to appreciate the reasoning in either case, or to approve the method by which the conclusion was reached.
The Nebraska court construed the provision to apply only in the event the act or thing pertains peculiarly to a more hazardous occupation, thereby restricting materially its operation or effect.
It would appear reasonable that if the parties intended that the only act or thing, the doing of which would operate to diminish liability in case of injury, should be one pertaining peculiarly or exclusively to the more hazardous occupation, they would have employed some apt term to indicate such purpose, and the fact that they did not do so leads naturally to the conclusion that they intended just what the terms they did employ fairly signify. This policy makes the character of the occupation to which the act pertains, and not the character of the act itself, determine the extent of liability. It does not provide for a diminished liability only in the event the insured is injured while doing an extrahazardous act or thing pertaining to a different occupation, but does provide for diminished liability if, at the time of the injury, the insured is doing any act or thing pertaining to a more hazardous occupation. The adjective “any” means one indifferently out of an unlimited number (Webster’s International Dictionary), and therefore, if the act or thing being done by the insured at the time of the injury pertains to a more hazardous occupation, it is wholly immaterial that such act itself, if standing alone, would be harmless, or fraught with no danger whatever. By
But the meaning of the contract is not obscure; on the contrary, it is too plain to admit of doubt. "We are not alone in this conclusion. The decided weight of authority sustains our view. In each of the following cases: Thomas v. Mason’s Fraternal Acc. Assn., 64 App. Div. 22, 71 N. Y. Supp. 692, Lane v. General Acc. Ins. Co. (Tex. Civ. App.), 113 S. W. 324, and Green v. National Casualty Co., 87 Wash. 237, 151 Pac. 509, the insured was injured while hunting, an occupation classified as more hazardous than the one for which he was accepted, and in each instance it was held that, though the insured had not changed his occupation, he was doing an act or thing pertaining to the more hazardous employment, and therefore the recovery should be limited to the amount which the premium would purchase upon the life of one engaged in such more hazardous undertaking. In Montgomery v. Continental Casualty Co., 131 La. 475, 59 South. 907, the insured, a draftsman with office and traveling duties only, was injured while doing the work of a machinist, an occupation classified as more hazardous, and the decision was in harmony with the views expressed in the cases last cited above.
The order denying a new trial is affirmed. For the reasons given, the cause is remanded to the district court, with direc
Modified and affirmed.