Gotfredson v. German Commercial Accident Co.

• Decision Date: 11 December 1914
• Docket Number: 2496.
• Parties: GOTFREDSON v. GERMAN COMMERCIAL ACCIDENT CO.
• Court: U.S. Court of Appeals — Sixth Circuit

218 F. 582

GOTFREDSON v. GERMAN COMMERCIAL ACCIDENT CO.

No. 2496.

United States Court of Appeals, Sixth Circuit.

December 11, 1914

This was an action to recover $5,000 upon a policy of accident insurance. The policy was to continue for one year from February 7, 1907, and was issued by the Commercial Mutual Accident Company of Philadelphia in the name of Harvey J. Reading and for the benefit of Carrie Reading, his wife. It was kept alive by annual payments of premiums and renewals until February 7, 1910, and, under the last renewal, was in terms continued for the ensuing year; but meanwhile, February 7, 1909, all liability under the policy was assumed by the German Commercial Accident Company, defendant, which received the premiums and made the renewals for the last two years. Both of these companies were corporations organized under the laws of Pennsylvania and maintaining agencies in the city of Detroit, Mich. The present insurance was effected in that city, where Reading was living and engaged in business from the date of the policy until his death. The insured met with an accident June 1, 1910, and died within the next three days; his widow made and delivered proof of the death in July, but died in October; and thereupon Benjamin Gotfredson plaintiff, was appointed and qualified as administrator of the estate of the beneficiary. The suit was brought in the circuit court of Wayne county, Mich., December 14, 1910, and was removed the following day to the court below, on the ground of diversity of citizenship. An amended petition was filed in April following, and under a plea of the general issue three defenses were noticed: (1) That there had been a breach of warranty as to the condition of health of the assured at the time of the last renewal; (2) that the accident was not the direct cause of the death, but was the result of a diseased condition of the heart; and (3) that recovery, if any, must be limited to $1,000, because the assured was doing an act outside of the occupation in which he was insured. The verdict was against defendant as to its first and second defenses, and the court charged the jury, as matter of law, that recovery in any event must under the third defense be limited to $1,000 and interest. The administrator prosecutes error. The parties are alluded to as they stood below.

J. W Dohany, of Detroit, Mich., for plaintiff in error.

J. E Moloney, of Detroit, Mich., for defendant in error.

Before WARRINGTON, KNAPPEN, and DENISON, Circuit Judges.

WARRINGTON Circuit Judge (after stating the facts as above).

The controlling feature of the case is whether the limitation placed upon the amount of recovery involved merely a question of law for the court or also a question of fact for the jury. It was shown without objection and by undisputed testimony that defendant had grouped its risks into five classes, and fixed premiums and losses according to the risks attending the occupations of the persons insured. Reading's occupation belonged to the first class and bore an annual premium of $25 and an indemnity of $5,000, while the occupation of an elevator conductor was in the fifth class and bore a relatively higher, though undisclosed, premium and an indemnity of $1,000. In addition to the language used in defining Reading's occupation, the fifteenth clause of the policy provided generally that, if an assured should be injured while doing an act 'pertaining to any more hazardous occupation,' the liability of the insurer should be fixed with reference to the more hazardous occupation. The trial court submitted to the jury the questions arising under the first and second defenses only, and, believing that merely a question of law was involved under the third defense, instructed the jury that it could not in any event find more than $1,000 under this defense. If error was committed, it was in failing to submit to the jury also the question of fact arising under this defense. Among the representations of fact made by Reading in the application, and in terms warranted to be true at the date of the policy and its last renewal, were these:

'I am a member of the firm H. J. Reading Truck Co., * * * whose business is that of trucking. My occupation and duties are fully described as follows: Proprietor. No manual labor.'

The evidence shows that Reading owned the business and conducted it under this firm name; and that the business was extensive-- indeed, for a year prior to the accident it included transportation in Detroit for 2 railroads and 150 wholesale houses, and also the storage of general merchandise. A change in location of the offices and storage plant had been going on some two months, when, on the evening of the accident, some of the effects of the old offices were brought to the new place for storage. The evidence tends to show that three loads of such articles arrived at this place as early as 5 o'clock. The removal of two of the loads into the building was not completed until the usual closing hour of 5:30. When the men were ready to discharge the third load, it was discovered that the elevator conductor had gone for the day. Reading's attention was called to this, whereupon he undertook to operate the elevator. The work of removing the articles contained in the third load to and from the elevator, as far as they were so carried, was performed by laborers; Reading doing nothing but run the car. One trip was made with the elevator to the basement and another to a floor above, and the car in both instances was returned in safety; but when the third load reached the fifth floor the cable separated, the car fell, and Reading received the injuries from which he died.

It does not appear that Reading ever ran the elevator before; and the occasion for this act was the fact that the conductor left the building while the men were engaged in removing the articles. In view of the facts and circumstances of the case, was Reading's operation of the car merely a casual act and incident to the occupation in which he was insured, or was the act to be ascribed to the occupation of the conductor of the elevator and Reading's indemnity reduced accordingly? Defendant's counsel say the act was 'manual labor,'performed in another and distinct occupation and more hazardous than the one described in the policy; and further that it was but one of a number of kindred acts Reading was accustomed to perform. It appears, for example, that he was in the habit of exercising superintendency over the business, over the change made in locations of the offices and storage plant-- in a word, that he 'bossed the operations of the business'-- and, if we understand counsel, these acts are claimed to give color to the act which resulted in the insured's death. This does not, however, give effect to all the words that were used to define his occupation. He was engaged in the trucking business, and his 'occupation' was described as 'proprietor, no manual labor.'

The company's agent, who solicited and obtained the insurance, in substance testified that these were not the words of Reading, but that they were employed by the agent to describe Reading's occupation. To be sure, according to another portion of the application, Reading warranted these words 'to be true and complete'; but aside from the rule that would require the policy to be interpreted strongly against the defendant, associating the words 'trucking business' with the words 'proprietor, no manual...