Irwin v. Phoenix Accident & Sick Benefit Ass'n

• Citation: 86 N.W. 1036,127 Mich. 630
• Parties: IRWIN v. PHOENIX ACCIDENT & SICK BENEFIT ASS'N.
• Decision Date: 10 July 1901
• Court: Supreme Court of Michigan

86 N.W. 1036

127 Mich. 630

IRWIN v. PHOENIX ACCIDENT & SICK BENEFIT ASS'N.

Supreme Court of Michigan

July 10, 1901

Error to circuit court, Muskegon county; Fred J. Russell, Judge.

Action by Mary J. Irwin against the Phoenix Accident & Sick Benefit Association. From judgment in favor of plaintiff, defendant appeals. Affirmed.

George W. Bridgman, for appellant.

Sessions & Sutherland, for appellee.

MONTGOMERY C.J.

Plaintiff recovered in an action on an accident policy issued to her son, George Irwin, in which policy plaintiff was named as beneficiary in case of death. The defense was that the death of George Irwin was caused by voluntary and unnecessary exposure to danger. The policy, by reference to the application, exempted the company from liability in case of either voluntary or unnecessary exposure to danger. It is contended that this language is such as to distinguish it from Johnson v. Accident Co., 115 Mich. 86, 72 N.W 1115; and counsel cites the case of Shevlin v Association, 94 Wis. 180, 68 N.W. 866, in which an exception of exposure to unnecessary danger was held to exempt the company from liability for an injury resulting from exposure to unnecessary danger when such danger is attributable to the negligence of the assured. The facts of that case show a case of gross negligence. We think the language of this contract indicates the purpose of limiting the exception to cases of exposure to recognized dangers, and does not exempt the company from mere thoughtlessness on the part of the assured. The words 'unnecessary exposure' are coupled with 'voluntary,' and while the disjunctive is used, we think this is not conclusive of the construction. The word 'exposure,' used in this connection, implies an intentional act. We do not think the case is distinguishable from Johnson's Case.

Was the court justified in withdrawing the case from the jury? The deceased met his death while working as a mason. The evidence shows that the support had been removed from one end of the scaffolding, and that, in stepping on the unsupported end of the boards, he fell to the ground and was killed. Alexander McIntosh, the contractor, testified: 'I had been on the scaffold not to exceed two or three minutes before the accident,--it certainly could not have exceeded five minutes,--and had conversation with George Irwin.' (He went on the scaffold to give Irwin some instructions about the work.) 'Q. Did you say...