Aetna Life Ins. Co. v. Dunn

• Decision Date: 11 May 1905
• Docket Number: 2,078.
• Citation: Aetna Life Ins. Co. v. Dunn, 138 F. 629 (8th Cir. 1905)
• Parties: AETNA LIFE INS. CO. v. DUNN.
• Court: U.S. Court of Appeals — Eighth Circuit

138 F. 629

AETNA LIFE INS. CO. v. DUNN.

No. 2,078.

United States Court of Appeals, Eighth Circuit.

May 11, 1905

Syllabus by the Court

Where a party obtains a policy of insurance against injury by accident, specifying the occupation of the assured to be that of a druggist, deemed to be a select risk, and that of a farmer or supervising farmer only is specified as a more hazardous risk, calling for a larger premium, and thereafter the drug store of the assured was destroyed by fire whereupon the assured moved upon a tract of land entered as a homestead, into a house built by him thereon, which he thereafter occupied with his family as his home, and superintended the construction of a barn thereon, and caused to be fenced and broken and cultivated 40 acres of the land thereof, under his supervision, for a period of six months and was preparing for further cultivation of land at the time of his injury, and for eight months prior to such injury had no connection with the business of a druggist, his occupation was that of a supervising farmer, and not that of a druggist within the meaning of the policy.

The term 'occupation,' as employed in the policy, implies simply that which at the time of the accident constitutes the assured's principal business or pursuit; that which engages his attention and time, as distinquished from that which is incidentally connected with the life of men in any or all occupations.

The fact that the assured for some time after the destruction of his drug store was engaged in proving and collecting a claim for loss under a policy of insurance on the drugs, and from time to time attended to the collection of accounts connected therewith, and entertained the purpose to resume the business of a druggist after he had made sufficient improvement on and had occupied his homestead for a sufficient length of time to enable him to sell his homestead right, did not have the effect to continue during such time his occupation as a druggist, or affect the designation of his occupation as that of a supervising farmer only.

The correct test in such cases is not so much as to whether the assured had in fact abandoned the occupation stated in the application and policy, but whether or not at the time of his injury he was in fact engaged in another occupation, not merely incidental, but as a business, of a more hazardous classification.

Arthur W. Lane (Halleck F. Rose, on the brief), for plaintiff in error.

A. S. Tibbets (W. L. Anderson, on the brief), for defendant in error.

Before SANBORN and VAN DEVANTER, Circuit Judges, and PHILIPS, District judge.

PHILIPS District Judge.

This is an action on an insurance policy known as a 'Twentieth Century Combination Accident Policy,' issued by the Aetna Life Insurance Company of Hartford, Conn., on the 9th day of December, 1901, in favor of William Henry Harrison Dunn. In the month of May, 1901, said Dunn was engaged in business as a druggist at the town of Mangum, in the territory of Oklahoma, when he made application to the insurance company for said policy. In his application he stated that he was a druggist, not chemist by occupation, and that as such he desired to be placed in the classification designated as 'select,' which occupation was deemed less hazardous, and required the payment of a less premium, then one engaged in the occupation of a farmer or a supervising farmer only. The policy was accordingly issued for a period of three months, covering the specified accidents. In case of death occurring within the terms covered by the policy, the amount of recovery was to be $5,000. The policy contained the following provision:

'The policy is issued and accepted subject to the following conditions: * * * If the insured is injured in any occupation or exposure classed by this Company higher than the premium paid for this policy covers, the principal sum insured and weekly indemnity shall be only such amounts as said premium will purchase at the rate fixed for such increased hazard.'

Within a short time thereafter, in the same month, the drug store of the assured was destroyed by fire. On the 26th day of September, 1902, the assured received an injury by being thrown from his buggy, which resulted in his death the next day thereafter. His widow, the defendant in error, as the beneficiary, brought suit on the policy to recover the full amount of $5,000.

The defense interposed to this action is that at the time of the accident the occupation of the assured was not that of a druggist, and had not been for six months or more previous thereto, but that in the preceding spring he had taken up the occupation of a farmer or supervising farmer only, in which business he was engaged at the time of the injury, which occupation at the time of the application and issue of the policy was classified as 'hazardous,' and not as 'select,' and called for a higher rate of premium than that of a druggist; and therefore said change in occupation, according to the contract, increased the hazard, and entitled the claimant, under the proper classification, to recover not exceeding the sum of $2,500. On a trial to a jury the plaintiff below recovered judgment for the full sum of $5,000, with interest.

The question to be decided is whether or not, on the whole evidence, the trial court should have instructed the jury that the plaintiff below was not entitled to receive the sum of $5,000 under the policy. The answer to this involves the question of fact, as affected by rules of law, whether or not at the time of the accident the occupation of the assured was that of a druggist, or of a farmer or supervising farmer only. The court below treated this question as one for the determination of the jury. If, however, all the essential facts give but one reasonable, sensible character to the assured's occupation at the time of his injury, the plain office of the court was to declare what that occupation was, and direct judgment accordingly.

The evidence shows that some years prior to 1900 the assured resided in the state of Nebraska, engaged in the superintendency of a large farm, of about 2,000 acres, owned by his brother. Thereafter he conducted a drug store in northeast Missouri. In May, 1901, he opened a drug store at Mangum, in the territory of Oklahoma, which he conducted until it was burned the 8th day of December, 1901. Between that time and his death, about September 27, 1902, he neither owned nor conducted a drug store or dealt in drugs. He was occupied more or less constantly between one and two months after the loss of his drug store in settling up the business connected therewith, and from time to time thereafter gave attention to the matter of collecting some scattered accounts growing out of the business of said drug store. As that store was not run over six months, in a small country town, in a newly opened territory, the number and amount of small accounts, it may reasonably be presumed, were not large. He also gave attention after the fire to making proofs of loss under the policy of insurance covering his drugs, and adjusting the claim. In August, 1901, he had, by lot, acquired the right to enter for homestead purposes 160 acres of land in said territory, which he located about 20 miles from Mangum. He began in the early part of 1902 the erection of a dwelling house on said land, into which he moved with his wife, who constituted his family, in February, 1902. He then removed from northeast Missouri, his former home, a lot of horses to this homestead. Except one used by him to ride and drive, the horses were claimed by the wife as her separate property. But he looked after them in the pasture as if his own; either watering them himself, or having it done, salting them, and occasionally feeding them with corn or kaffir raised on the farm. He had fenced about 40 acres of this land, and, under his direction, caused to be cultivated thereon corn and kaffir. In the spring of 1902 he built a barn on this land. While he had this work done under contract, and part by day labor, he assisted a little about the work and superintended it just as any other supervising farmer would have done. From February, 1902, to the day of his death, he and his wife occupied the house on this homestead, and had no other home. On the very day he met with his fatal accident, he was engaged in driving about in his buggy, from which he was thrown by his vicious horse, to see about obtaining men and machinery to put in a crop of wheat on the farm, and to get a man to attend to the horses on the farm while he was absent on a contemplated trip for the next day or so.

The defendant in error, before this suit was brought, in letters written to the adjusting agent of the plaintiff in error, stated that:

'My husband, Mr. Dunn, was by profession a druggist. While in the drug business in Mangum, Okla., he drew a very fine claim when this country was thrown open to settlement. When fire destroyed the building in which his drug store was located, Mr. Dunn decided that he would prove up on his claim, and sell it before again opening up a drug store, as the town of Lone Wolf did not offer a good opening for a store, and at the same time he could not prove up on his claim here until November 1st. * * * My husband did not keep a hired hand all the time, as the work did not require it, but when it did then he employed help. * * * The afternoon of the day of the accident Mr. Dunn was making arrangements for putting in his fall wheat. Together we drove

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