Benefit Ass'n of Ry. Employees v. Secrest

• Court: Kentucky Court of Appeals
• Writing for the Court: RICHARDSON, J.
• Citation: Benefit Ass'n of Ry. Employees v. Secrest, 39 S.W.2d 682, 239 Ky. 400 (Ky. Ct. App. 1931)
• Decision Date: 02 June 1931
• Parties: BENEFIT ASS'N OF RAILWAY EMPLOYEES v. SECREST.

39 S.W.2d 682

239 Ky. 400

BENEFIT ASS'N OF RAILWAY EMPLOYEES v. SECREST.

Court of Appeals of Kentucky

June 2, 1931

Appeal from Circuit Court, Estill County.

Action by William Arthur Secrest against the Benefit Association of Railway Employees. Judgment for plaintiff, and defendant appeals.

Affirmed.

Hugh Riddell, of Irvine, and Paul E. Keller, of Chicago, Ill., for appellant.

Hafford E. Hay, of Irvine, for appellee.

RICHARDSON J.

This appeal brings to us for review a trial in the circuit court of an action by William Arthur Secrest, the appellee here against the Benefit Association of Railway Employees, the appellant, on an "Accident and Illness Income Policy" issued by the appellant to the appellee on the 17th day of July, 1928. On a trial by jury, a verdict was returned for the appellee for the sum of $2,075, on which a judgment was rendered, from which this appeal is prosecuted. For his cause of action, the appellee in his petition sets up the entering into and the making of the contract of insurance between him and the appellant, its terms and conditions. He alleged that on the 29th day of September, 1928, while the contract was in force, he was accidentally hurt by a garage door slamming against his shoulder, striking him across the muscles, knocking his shoulder bone loose, cutting the muscles, and that his shoulder is three inches lower than normal, resulting in a paralysis of his arm.

At the time the policy was issued, the occupation of appellee was that of clerk or chief engine dispatcher for the Louisville &amp Nashville Railroad Company at Ravenna, Ky. and it is so given in the policy. In consideration of the payment of a monthly premium of $4.50, among other provisions for accidental injuries, the appellant agreed to pay $100 per month (1) "for loss resulting directly and exclusively of all other causes, from bodily injury sustained at any time during the life of this policy solely through external, violent and accidental means (excluding suicide, sane or insane), such bodily injury so sustained being hereafter referred to as 'such injury. ***"'

Part 4 section A, under the title "Monthly Accident Indemnity" of the policy, is in this language:

"(a) When 'such injury' shall, independently of any and all other causes, immediately, totally and continuously disable the insured from and after the time 'such injury' was received and prevent the insured from performing any and every kind of work pertaining to his occupation, the Association will pay for actual loss of time from the first day of such disability for the continuous period of such total disability, accident indemnity at the Rate per month specified in Part I."

Section B reads:

"(b) Or if 'such injury' shall not from date of the accident wholly disable the Insured but shall within one hundred days thereafter wholly disable him, or shall, commencing on date of the accident or immediately following total loss of time, prevent him from performing work substantially essential to the duties of his occupation, the Association will pay as indemnity for the continuous period of loss of the time caused thereby, not exceeding twelve consecutive months, one-half of said monthly indemnity.

Provided, that indemnity under this Part shall not be paid for disability resulting from any loss specified in Part II, except such indemnity as may be payable during the intervening period as therein specified; nor for any loss specified in Part VII hereof; nor unless the Insured is continuously, by reason of 'such injury' necessarily under the regular treatment at least semimonthly, of a legally qualified physician or surgeon, and only while he remains within the boundaries of the United States of America or Canada."

Clause 1 of the standard provisions of the policy provides that, if he is injured after having changed his occupation to one classified by the appellant as more hazardous than that stated in the policy, or while he is engaged in doing any act or thing pertaining to any occupation so classified, except ordinary duties about his residence or while engaged in recreation, in such event the appellant agreed to pay such indemnity provided for in the policy as the premium would have purchased at the rate fixed by it for such more hazardous occupation.

To prevent a recovery, the appellant traversed the petition, and affirmatively pleaded that, before the injury to the appellee occurred, he left the services of the railroad company, and became actively engaged in selling insurance, that he left the services of the railroad company for the purpose of following another occupation, and that his injury did not prevent him from carrying on the work of selling insurance.

By amended answer, it relied on his failure to give notice to the appellant within twenty days after his injury. By a second amended answer, it averred that "appellee was not a clerk of the L. & N. Railroad Company but was engaged in another occupation and that his injury did not prevent him from carrying on the work of the occupation in which he was engaged at the time of his injury." By agreement, the affirmative allegations of the pleadings were traversed of record.

The appellant for reversal urges (1) that the phrase "the occupation of the insured" means his occupation at the time of the injury, and not the occupation he was engaged in at the time the policy was issued; that he had changed his occupation before the injury from engine dispatcher to insurance solicitor; (2) he worked as an insurance solicitor following and subsequent to his injuries, and that his disability is not compensatory because such disability was not immediate and continuous from the date of the accident; (3) he failed to prove he was under the care and treatment of a regularly qualified physician or surgeon during the entire period of disability; (4) the court should have allowed appellant credit for accrued premiums.

There is no express clause or provision in the policy forbidding the appellant from engaging at the same time in an occupation other than clerk or engine dispatcher of a railroad company, nor is there a clause in it providing for a forfeiture if he should change his occupation or engage in two occupations. On the 6th day of September he became ill with flu and continued ill until September 28th. In the meantime he asked for and was granted a leave of absence by the railroad company in this language: "All Clerks: On account of temporary physical disability Mr. W. A. Secrest, Engine Dispatcher at Ravenna is granted a sixty (60) days leave of absence and given the privilege of engaging in such work as he may find and his health permits."

On December 13, 1928, he was granted a second leave of absence in this language: "All Clerks: On account of continued illness Engine Dispatcher, W. A. Secrest has been extended an indefinite sick leave and his position bulletined accordingly."

His injury occurred on the 28th day of September, 1928.

Before his first leave of absence was granted, and while regularly engaged in his employment as "Chief Engine Dispatcher for the L. & N. R. R. Company and as clerk," the appellee had been engaged on the side in writing insurance for the Accident Insurance Company of Chattanooga, Tenn. On the 8th day of September, 1928, the appellee was employed as solicitor of insurance by H. C. Conley, manager of the railroad department of the Provident Life & Accident Insurance Company of Chattanooga, Tenn. At the time of his injury, he had been off duty as chief engine dispatcher on a leave of absence for about two weeks. Although he had a contract as solicitor with Conley's insurance company during that two weeks, he had not solicited nor written any insurance.

At the time he was injured, he was at his home, going after a bucket of coal for use in his home. While doing so, he passed between the garage wall and the garage door, which had been taken off its hinges. The top part of it was leaning against the wall of the building, and, as he passed through this opening, the door slipped, fell, and struck his shoulder. He was totally disabled therefrom, and has been unable to resume his duties as chief engine dispatcher or clerk. He has suffered severely, and was compelled to sit up of nights between pillows, unable to raise his arm from his shoulder to his elbow; cannot raise his elbow from his side to get his arm on the desk when he sits down to work. It is conclusively shown by the evidence that the appellee, after he obtained his first leave of absence, did not in fact engage in soliciting insurance under his employment with the insurance company. One vital question to be determined is, "What was his occupation at the date of his injury?"

"Occupation" is defined by Webster's New International Dictionary in these words: "That which occupies, or engages, the time and attention; the principal business of one's life; vocation; employment; calling; trade."

Couch on Insurance, vol. 5, § 1139, reads in part as follows: "*** The word 'occupation' has reference to the principal or regular business of a man's life, or that to which he devotes his time and attention, such as trade, profession or other vocation or calling, or that which principally takes up one's time, thought and energy, especially one's regular business or employment, or whatever one follows as a means of making a livelihood; the principal or usual business in which a man engages. ***"

The fact that appellee before he received his injury obtained a leave of absence from the railroad company, without his statements upon the witness stand in which he gave his occupation as clerk or chief engine dispatcher, establishes with a reasonable degree of certainty that he had not abandoned his occupation of chief engine...