OPINION
BROADDUS, P. J.
--The
plaintiff seeks to recover $ 200 on a policy of accident
insurance for $ 1000, it being alleged in her petition that $
800 had been paid to her by defendant. It is alleged that the
policy was issued to her husband; and that he was killed by
an electric shock May 9th, 1909.
The
answer admits the issuance of the policy, death of the
insured and demand by plaintiff of $ 1000, the amount of the
insurance; and further avers that after said death,
defendant, believing that it was not liable to plaintiff,
refused payment of her demand, so that a dispute arose
between plaintiff and defendant as to its liability on said
policy; and that on July 17th, 1909, the parties compromised
their dispute by defendant paying plaintiff $ 800 and by
plaintiff executing a release fully discharging the defendant
from all further liability. The release is copied into
defendant's answer.
Plaintiff's
reply admits that she signed the release and surrendered the
policy, but alleges that she was induced to sign the same by
false and fraudulent representations.
At the
time deceased was insured he was in the employ of the Monarch
Vinegar Works as a stationary engineer. At the time of his
death he was in the employ of the Nelson Grain Company in the
same capacity.
In the
building where the deceased was killed there were three heavy
insulated electric wires on the main circuit that came into
the building, and which were brought down parallel to each
other along the wall near the motor. These wires were not
continuous. They were cut and a space of six or eight inches
was removed. In these spaces were pieces of copper or brass about a quarter of an inch thick and one
inch wide; one end fastened on a hinge joint so that each one
could be placed directly in line with the wire and touch each
end that had been severed, and in that way make a continuous
circuit. The construction formed a switch. In order to
disconnect the circuit, the pieces were pulled backward. For
this purpose the company had a pole, a nonconductor, six or
eight feet long with a hook at the end with which a person
standing the distance of the pole could pull the pieces
backward without danger of being shocked. It was shown that
the hands of deceased came in contact with these pieces of
brass, which were not insulated at the time. It appeared,
however, that he had had the pole, but it did not appear
whether he had it at the time or not.
It is
provided in paragraph 10 of the policy that: "If the
insured is injured after having changed his occupation or
duties to one classified by this corporation as more
hazardous than that herein stated, or is injured while doing
any act or thing pertaining to any more hazardous occupation,
the corporation's liability shall be only for such
proportion of the principal sum or other indemnity as the
premium paid by him will purchase at the rate fixed by this
corporation for such more hazardous occupation." And
there was a further provision that the policy did not cover
injuries resulting wholly or in part from unnecessary
exposure to obvious risk of injury or obvious danger.
The
plaintiff, in part, testified as follows: "I am the
widow of John P. Biddlecom. He was killed at the Park
elevator, where I saw him about ten minutes afterward lying
on a platform of a motor of the engine room. His body was
about a foot away from the wires and switches used in
connection with the motor. Part of the flesh of his hands was
on these wires and switches. I had seen him about an hour
before and he was not intoxicated.
"After my husband's death I notified
the company over the telephone and they told me to come up
there just as soon as I could; and I think, as nearly as I
can remember, it was about--it was after my husband was
buried; that was a week later; I went up to the Insurance
Company's office on Grand avenue and I seen Mr. Long and
he told me that he had nothing whatever to do with the
insurance, and sent me to Mr. Reed's office, and I went
to Mr. Reed's office in the New York Life Building, and I
told
him I wanted a settlement for the insurance and he gave me
some blanks and told me when they were properly filled I
should return them; and so I left his office and after they
were properly filled I brought them back and he told me just
as soon as he heard from the home company he would let me
hear from him. And I called up over the phone several times,
and it seemed a long time afterward, because I believe the
home company was away from here--in Scotland. And I think I
called him up and he told me that he had heard from the home
company, and I went up to his office, and when I went up to
his office he told me that the company did not owe me
anything. And so finally he agreed that the company owed me $
666 and some cents, and I got mad and I told him I would not
take that and I left his office, and I did not know what to
do. I never had had any business experience, and it was my
first. I left his office and I thought about Mr. Hocker of
the Massachusetts Life Insurance Company. My husband had a
policy in that company, and I thought he could help me and I
did not know what else to do. So I asked him and he told me I
had better have a lawyer. He asked me if I had a lawyer and I
told him I had not; that I did not trust any lawyers. And he
advised me to get a lawyer and he told me about Mr.
Dickinson, and I believe he called Mr. Dickinson up in his
office. I ain't sure, but I believe he did. And he
introduced Mr. Dickinson to me, and I did not, at that time,
talk to Mr. Dickinson about this insurance;
but I afterward went up to Mr. Reed's office, and I seen
him again about this insurance and he told me that $ 750 was
all the company owed me. And after that I went to Mr.
Dickinson's office and I told Mr. Dickinson about it, and
I told him that I wanted him to collect that money for me,
and I asked him to collect that money and told him I would
pay him for his trouble. And I believe Mr. Dickinson went
down to Mr. Reed's office and talked to him, and I forget
what he had to say about the insurance, but I believe he said
that was all the company owed me. So I told Mr. Dickinson I
would pay him for his trouble later on, because I was
afraid--I thought they were all trying to beat me. And as
soon as I came home I thought about Mr. Nelson of the Nelson
Grain Company and I went to his office. That is, I called him
up over the 'phone and asked him if he would do anything
for me, and Mr. Nelson told me he would see Mr. Reed, and I
called him up several times and he told me he had not heard
from Mr. Reed, but he would go and see him; and finally I
called him up and told him that Mr. Reed said $ 800. After I
heard from Mr. Nelson I went to Mr. Reed's office
and--no, in fact, I called up Mr. Reed and he told me that
there was a check up there for $ 800--the company's
check--and I went up to Mr. Reed's office. He told me if
I wanted to accept that check that it was all the company
owed me and I didn't know whether--he showed me a book.
It was some kind of an insurance book he showed me. He said
that was all the company owed me under some conditions; I
don't know what conditions. He showed them. And I thought
that was all I would ever get and so he gave me a paper to
sign and I remember of signing that paper, but I don't
know what I signed, and he gave me a check or draft for $
800. I took the draft to the bank and left it there and had
it cashed.
"Mr.
Reed told me that my husband had changed his occupation and I
told him that he had not changed it; that
he was still a steam engineer. I believed what he said
because he showed me in a book that there was no more coming
to me than that amount. I had discharged my attorney, Mr.
Dickinson, before the settlement was made. I have been paid
only the $ 800. The company did not ask me to make fuller or
further proofs of death or do anything else to sustain my
claim.
"Cross-examination.
My first visit to Mr. Reed's office was two weeks after
my husband's death, I believe, but am not sure. I saw him
there three or four times, but called there a number of times
when he was not in. On my first visit Mr. Reed told me the
company was not liable to me. He also offered to pay six
hundred and some odd dollars in compromise. Before my second
visit to Mr. Reed I had consulted Mr. Hocker, an insurance
man, and on his advice, I employed Mr. Dickinson, a lawyer. I
laid the facts before Mr. Dickinson before I again saw Mr
Reed. I left the policy with him for collection. Mr.
Dickinson saw Mr. Reed and reported that he had offered to
pay $ 750. He also told me that $ 750 was all that the
company owed me, and at one time he said that the company did
not owe me anything. At my first visit with Mr. Reed he told
me that the company owed me nothing because my husband had
changed his occupation. I signed E...
