Benefit Association of Ry. Employees v. Secrest

• Court: Supreme Court of Kentucky
• Writing for the Court: Judge Richardson
• Citation: Benefit Association of Ry. Employees v. Secrest, 239 Ky. 400, 39 S.W.2d 682 (Ky. 1931)
• Decision Date: 02 June 1931
• Parties: Benefit Association of Railway Employees v. Secrest.

239 Ky. 400

Benefit Association of Railway Employees v. Secrest.

Court of Appeals of Kentucky.

Decided June 2, 1931.

1. Insurance. — That insured under accident policy received injury after obtaining leave of absence from railroad established that he had not abandoned "occupation" of engine dispatcher to engage exclusively in insurance business, as respects disability.

"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 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.

2. Insurance. — Terms of policy permitting, it will be given construction consistent with reason and common fairness rather than enforcing forfeiture.

3. Insurance. — Under accident policy covering injuries preventing insured performing "any and every kind of work pertaining to his occupation," insured's recovery depended on occupation when injured.

4. Insurance. — Insured's rights, depending on "occupation" when injured, depended on what he was actually doing when injured, not on whether he engaged temporarily in seasonable occupation.

5. Insurance. — Engine dispatcher's rights on policy insuring him against injuries disabling him for his occupation was unaffected by his contracting, two weeks prior to injury received at home, to solicit insurance.

When injured, insured was engaged in ordinary duties about his residence, and his injury did not result from a risk incident to the insurance business nor his work as engine dispatcher. Moreover, evidence discolsed that, although he had made arrangements with an insurance company to solicit insurance, he had not in fact engaged in that business at any time prior to his injury.

6. Insurance. — Evidence, in action on accident policy, justified finding that insured had not abandoned engine dispatching for insurance soliciting when injured.

Evidence showed that insured became ill on the 6th of September, and was granted a leave of absence by the railroad employing him of sixty days; that insured's injury was received on September 29th; that before his first leave of absence was granted, and while regularly engaged as engine dispatcher, insured had been engaged on the side in writing insurance, and that on September 8th insured was employed as a solicitor by the manager of an insurance company, but did not in fact engage in soliciting insurance before he was injured.

7. Insurance. — Disability preventing insured from doing all substantial acts required of him in his business held "total disability."

8. Insurance. — Evidence in action on accident policy held to show that insured was disabled to work as engine dispatcher, although insured wrote insurance and wrote for newspapers after injury.

Evidence showed that insured's work as engine dispatcher required much writing, and that insured, owing to his injury, was not able to raise his arm from his shoulder to his elbow, and could not raise his elbow from his side to get his arm on the desk when he sat down to work, and that the work which insured did in regard to soliciting insurance required a small amount of writing, and that in regard to the newspaper writing, insured gathered clippings from newspapers, his wife writing the notes in reference to them.

9. Appeal and Error. — Accident insurer could not benefit from insured's failure to prove compliance with clause requiring regular treatment by physician, where insured failed to raise issue in court below.

10. Appeal and Error. — Question not raised by pleadings will not be considered on appeal.

11. Appeal and Error. — Court of Appeals will not consider question not raised nor adjudicated in Circuit Court.

12. Appeal and Error. — Question of law not presented to, nor passed on by, trial court, cannot be first raised in Court of Appeals.

13. Appeal and Error. — Since not presented at trial, Court of Appeals could not review question of failure to instruct jury to allow insurer credit for accrued premiums.

Appeal from Estill Circuit Court.

HUGH RIDDELL and PAUL E. KELLER for appellant.

HAFFORD E. HAY for appellee.

OPINION OF THE COURT BY JUDGE RICHARDSON.

Affirming.

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 accidently 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 & 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...