Employers' Liability Assur. Corp. v. Back

• Decision Date: 07 May 1900
• Docket Number: 574.
• Parties: EMPLOYERS' LIABILITY ASSUR. CORP., Limited, v. BACK.
• Court: U.S. Court of Appeals — Ninth Circuit

102 F. 229

EMPLOYERS' LIABILITY ASSUR. CORP., Limited, v. BACK.

No. 574.

United States Court of Appeals, Ninth Circuit.

May 7, 1900

Williams Wood & Linthicum, T. C. Van Ness, and L. A. Redman, for plaintiff in error.

John H Hall (W. T. Hume, of counsel), for defendant in error.

Before GILBERT and ROSS, Circuit Judges, and HAWLEY, District Judge.

ROSS Circuit Judge.

This was an action upon an accident policy of insurance issued to one Go Boo, a Chinese person, upon his application, made in writing, by the terms of which it is declared that the statements of fact contained in the application are to be considered as warranties. The application for the insurance signed by the insured, contained, among others, the following declarations and provisions:

'(4) My occupation is that of an importer and dealer in Chinese merchandise and contractor for Chinese labor. (5) The class of risk under my occupation is agreed to be ordinary. (6) I understand that risks are differently classified, according to occupation; and I agree that for any injury received in any occupation or exposure classed by this company as more hazardous than those above stated I shall be entitled to recover only such amount as the premium paid by me would purchase at the rates fixed for such increased hazard. (7) The amount of insurance against accidental death or permanent total disablement hereby applied for is five thousand dollars. (8) The amount of weekly indemnity for totally disabling injuries hereby applied for is twenty-five dollars. (9) The premium for one year's insurance to be $37.50.' '(15) I have not in contemplation any special journey or any hazardous undertaking.'

The policy issued upon that application, and accepted by the insured, upon which the present action is based, provides:

'The Employers' Liability Assurance Corporation, Limited, does hereby insure Go Boo, of Astoria, Oregon, engaged in the business or occupation of a merchant, under classification ordinary, for the term of twelve months from April 14, 1898, at noon, against bodily injuries, within the meaning of this policy, subject and according to the agreements and conditions herein contained, including those printed on the back of this policy, in the principal sum of five thousand dollars, and will pay the under-mentioned amounts,' etc.

Among the agreements and conditions contained in the policy is the following:

'If the insured is injured in any occupation or exposure classed by this corporation as more hazardous than that herein given, his insurance and weekly indemnity shall be only for such amounts as the premium paid by him will purchase at the rate fixed for such increased hazard.'

The complaint alleges the issuance and delivery of the policy to Go Boo, and avers that during the period covered by it, to wit, July 24, 1898, at the cannery of the Fidalgo Island Canning Company, at Anacostes, in the state of Washington the insured was adjusting a certain windlass, which adjusted to the height of the tide a certain elevator used in the cannery for raising fish from scows to the wash room, and had started to step away from the elevator, when, in some way unknown, the pin holding the windlass in place became loosened, and the arms of the windlass began to revolve very rapidly, striking him violently upon the shoulder and side, thereby inflicting injuries from which he died the next day. The complaint contains, also, the usual averments in respect to the payment of the premiums, proof of death, etc., about which no question is made. The defendant by its answer set up, among others, this defense: That the company undertook to and did insure the life of the said Go Boo as an importer and dealer in Chinese merchandise and contractor for Chinese labor, and not otherwise, the premium therefor being $37.50, which business, the answer alleges, 'is classified and described in said policy, and is classified and known in the business of defendant, and by other firms and corporations engaged in the...