Cosgrove v. National Cas. Co., 24715.

• Decision Date: 09 April 1934
• Docket Number: 24715.
• Citation: 31 P.2d 80,177 Wash. 211
• Parties: COSGROVE v. NATIONAL CASUALTY CO.
• Court: Washington Supreme Court

31 P.2d 80

177 Wash. 211

COSGROVE v. NATIONAL CASUALTY CO.

No. 24715.

Supreme Court of Washington

April 9, 1934

Department 1.

Appeal from Superior Court, Skagit County; Geo. A. Joiner, Judge.

Action by Helen Cosgrove against the National Casualty Company. Judgment for plaintiff, and defendant appeals.

Reversed with direction.

Roberts Skeel & Holman and Frank Hunter, all of Seattle, for appellant.

C. J Henderson and Alfred McBee, both of Mount Vernon, for respondent.

STEINERT Justice.

This is an action upon an insurance policy, and was brought to recover the amount of the death benefit prescribed therein. Trial was had Before a jury, which returned a verdict favorable to plaintiff, widow of the insured. From a judgment entered thereon, motions for judgment notwithstanding the verdict and, in the alternative, for a new trial having been denied, defendant has appealed.

The facts are as follows: On February 5, 1931, the appellant issued to the insured, W. J. Cosgrove, its 'Travel and Pedestrian Accident Policy.' insuring him 'against Death or Disability resulting directly, independently, and exclusively of all other causes from bodily injuries effected solely through external, violent and accidental means,' subject, however, to all limitations and conditions contained in the policy. The respondent herein was named as the beneficiary. The policy was issued in consideration of a registration fee of $1.25, paid by the insured, and his agreement to continue as a regular reader, during the life of the policy, of a certain daily newspaper published in Seattle. The present controversy centers upon the interpretation to be given to the following provision contained in the policy:

'If the Insured shall (a) * * * (b) By being struck, knocked down or run over while walking or standing on a public highway by a vehicle propelled by steam, cable, electricity, naphtha, gasoline, compressed air, liquid or horse power, ( excluding injuries sustained * * * while doing work on a public highway * * *), * * * suffer within thirty days from the date of accident any of the specific losses set forth below in this Part IV, the Company will pay the sum set opposite such loss:

'For loss of life ...... One Thousand Dollars ($1,000.00). * * *'

We have italicized the portion of this provision which calls for particular attention and interpretation.

The insured, Mr. Cosgrove, was employed by Skagit county as a truck driver and was a member of a road crew which was engaged in digging, hauling, and disposing of gravel in connection with the repair and maintenance of a county road. His hours of work were from 8 a. m. until noon and from 1 to 5 p. m. The gravel was taken from a pit alongside the road and was loaded, by means of a hoist, into trucks which carried it down the road to a point where it was to be dumped. After the gravel had been dumped, one of the members of the crew would spread it upon the road. Mr. Cosgrove operated one of the trucks in which the gravel was hauled.

On July 20, 1931, the crew quit as usual for lunch at noon. During the lunch hour, Mr. Cosgrove delivered a load of gravel to the residence of a friend living about a mile and a half from the gravel pit. This was done on Mr. Cosgrove's own time and for which he received a supply of eggs in return. After delivering this load of gravel, he started back toward the pit at about twenty minutes to one. The crew resumed their work as usual at 1 o'clock. The accident with which we are here concerned occurred between 1:30 and 2 o'clock. Immediately prior thereto, one of the trucks was being loaded at the pit, and Mr. Cosgrove was waiting in line with his truck about 150 feet away. Between his truck and the pit was another truck which would naturally precede him in being loaded. Upon the loading truck was a water jug from which all of the members of the crew drank from time to time, as they desired. As the loaded truck started to leave, Mr. Cosgrove walked down the road toward it, got upon its left running board and reached over across the driver's seat to get the water jug. Finding it empty, he set it down again and stepped backwards off the running board. In doing so, however, he stumbled and staggered backwards five or six steps, falling to the ground in front of the left rear wheel. The truck was then moving slowly in second gear. The rear wheel of the truck ran against his back, while he was in a sitting position on the ground, and, unfortunately, crushed his body to such an extent that he died shortly thereafter. At the time of the accident, the insurance policy was in force.

The principal question here is, as the trial court stated whether the decedent was at the time engaged in 'doing work on a public highway.' It is apparent that the phrase just quoted imports, or suggests, several ideas. It may have reference to the nature of the work, that is, work incident to the construction, maintenance, or repair of a public highway, whether that work be done actually within the limits of the highway or not. On the other hand, it may have reference to the pl...