Hess v. Preferred Masonic Mut. Acc. Ass'n of America

• Decision Date: 23 March 1897
• Citation: 112 Mich. 196,70 N.W. 460
• Parties: HESS v. PREFERRED MASONIC MUT. ACC. ASS'N OF AMERICA.
• Court: Michigan Supreme Court

70 N.W. 460

112 Mich. 196

HESS v. PREFERRED MASONIC MUT. ACC. ASS'N OF AMERICA.

Supreme Court of Michigan

March 23, 1897

Error to circuit court, St. Joseph county; Philip Padgham, Judge.

Action by Lloyd B. Hess against the Preferred Masonic Mutual Accident Association of America. Judgment for plaintiff. Defendant brings error. Affirmed.

Grant J., dissenting.

Moore & Moore, for appellant.

Howard Roos & Howard, for appellee.

MOORE J.

The plaintiff sued the defendant to recover for the loss of a hand which was cut off by coming in contract with a buzz saw. The case was tried by a jury, who rendered a verdict in favor of plaintiff. Defendant appeals.

When the plaintiff was insured by the defendant, he was cashier in a bank. His claim is: That he wanted a cabinet for use in the bank, and went to a planing mill to have some boards sawed off with which to make the cabinet. That he told Mr. Bloom an employ�, what he wanted. That the employ� started the cut-off saw, and cut off some boards for the shelves, and took them to the band saw, to put more work upon them. That while the employ� was doing this, plaintiff saw the ends of the cherry boards on the floor near the cut-off saw, and thought he could use them for handles to the cabinet, and requested a 14 year old boy to saw them off for him. The boy started the saw, but did not saw off the blocks as plaintiff expected him to do, and the plaintiff said he thought he could do it himself, and that he did saw them off. That after he had sawed off the blocks, he stood close up to the table, watching the boy who was about 20 feet away, piling lumber. That he was simply waiting by the side of the table. That he cannot say how long he had been waiting; it may have been one minute, or it may have been five. That there was sawdust and little blocks of wood on the floor. That he stepped on something, and stumbled, and lost his balance, and threw out his arms to save himself from falling, when his wrist came in contact with the saw, and his hand was cut off. He further testified that when he told the proprietor of the mill what he wanted done, he was requested by him to show Mr. Bloom how he wanted the work done, and that he went into the mill for that purpose.

One of the defenses interposed was that the plaintiff cut off his hand purposely. It will not be necessary to discuss that defense, because the jury have found against the defendant upon that proposition. The other defenses are that the injury occurred while the assured was doing what was forbidden by the policy. Its terms were: "The member is required and agrees to use all due diligence for his personal safety and protection;" that the insurance shall not cover "voluntary exposure to unnecessary danger"; and also contained the following provision: "Inasmuch as eligibility to membership in this association is confined by its charter to persons whose occupations are comprised within the classification commonly known as 'Preferred Risks' by casualty companies, a copy of which classification is printed upon the back of this certificate, it is therefore agreed that this certificate shall be wholly void as to all accidents occurring to the insured when engaged in any profession, employment, or exposure not herein rated as a preferred occupation." It is the claim of the defendant that the insured "was engaged in a profession, employment, or exposure not rated as a preferred occupation in the policy," and for that reason cannot recover; and that, as a matter of law, the judge should have so determined, and directed the jury to return a verdict for the defendant,-citing a number of cases in support of that contention, all of which are distinguishable from the case here, except the case of Knapp v. Association, 53 Hun, 84, 6 N.Y.S. 57. This case does sustain the contention of appellant, but it is contrary to the great weight of authority. In Nibl. Ben. Soc. & Acc. Ins. � 409, it is said: "A change of occupation means an engaging in another employment as a usual business. It does not apply to temporary employments during leisure hours, to acts done outside of one's usual and ordinary business, or to casual employment in a different business." A provision of a policy limited the liability of the company to a less sum than that named in the policy if the insured should be injured in any occupation or exposure classed as more hazardous than that specified in the policy. It was held the terms "occupation" or "exposure" classed by this company as more hazardous refer to distinct classified occupations or employments, and to bring the case within the provision limiting the liability of the company the assured must be within one of such classes,-that is, engaged in one of the more hazardous occupations. Nibl. Ben. Soc. & Acc. Ins. � 412. A case involving the same principles which should control the disposition of this case is Stone's Adm'rs v. Casualty Co., 34 N. J. Law, 371, in which the court said: "The injuries excluded from compensation of the policy are described as those that are received in any employment or by any exposure, either more hazardous in itself, or classified by the company as more hazardous. These terms, literally rendered, required that the assured, to come within their effect, must, at the time of the injury, be in an employment more dangerous than his own. The language has respect to the employments, and not to individual acts. It is true that a certain ambiguity is introduced by the expression 'by other exposure,' but, looking at the body of the policy, we find these terms used in the sense of the risks arising from a business or occupation. By adhering to the literal signification of the terms employed, these indorsements, prefixed to the several classes of employments, lose all force as independent stipulations, and serve the simple purpose of graduating such employments for service to that provision of the policy which prohibits the assured from passing at his own option from one business to another. Understood in this view, they are properly a part of the classification; but, if they are to be received as containing new terms of the contract, they are entirely out of place. If the company intended to say to the assured that if he did any act which did not strictly belong to his occupation, but was embraced more properly in some other business, and if thereby any harm to him accidentally resulted, in such event he could claim nothing under his policy, it was easy for them to do so in plain language. Such a stipulation would obviously be one of a very important character, and we would expect to find it in the body of the instrument. A qualification of the agreement so restrictive of the rights of the party insured ought not to be admitted unless the terms of this indorsement will bear no other interpretation. If the terms used are imperfect or ambiguous, it is the fault of the defendants. It is their contract, and the construction of it must be strongly against them." And it was held the plaintiff was entitled to recover.

The case of Association v. Frohard, 134 Ill. 228, 25 N.E. 642, is an instructive case. The opinion states "The principal contention of appellant is that the deceased was killed while engaged temporarily in and act or occupation classed as more hazardous than the one in which he was accepted, and that appellee is therefore entitled to recover only the amount provided for such hazardous risk and occupation. The contention of the appellee is that there was no change of occupation within the meaning of the by-laws and certificate of insurance. The deceased was a hardware merchant. He did not follow the occupation of hunter for hire or profit. He was killed while engaged in the act of hunting as a recreation, and it does not appear that he had hunted with a gun on any occasion since the issuance of the policy other than when the accident occured. The language of the policy is: 'Any member receiving an injury while engaged, temporarily or otherwise, in an occupation more hazardous than the one in which he was engaged when insured,' etc. 'Occupation' is defined by lexicographers to mean 'that which occupies or engages the time or attention; the principal business of one's life; vacation, employment; calling; trade.' The classification of hazards in the by-laws is made upon the basis of occupations. Merchants and those following other like vocations are placed in division A; grain measurers and others in division B. *** The by-laws in question must receive a reasonable construction. It would be unreasonable and absurd to hold that the merchant who at one time measured a few bushels of grain, at another hung a few rolls of wall paper upon his own premises, at another drove a team of horses in a carriage or wagon, or rowed a skiff for exercise, became, within the true intent and meaning of these by-laws, a grain measurer, a paper hanger, a teamster, and a boatman, respectively. The word 'occupation,' as found in these by-laws, must be held to have reference to the vocation, profession, trade, or calling which the assured is engaged in for hire or profit, and not as precluding him from the performance of acts and duties which are simply incidents connected with the daily life of men in any or all occupations. *** It is urged, however, that the contract of insurance contains the words, 'in any act or occupation,' instead of the mere words, 'in another occupation,' found in the by-law; and the words, 'while engaged temporarily or otherwise in an act,' cannot be ignored, but that they have a definite and clear meaning, and must be given legal force and effect. It is to be noted that the words used in the contract are words selected and used by the corporation itself, and are, therefore, to be...