Interstate Business Men's Acc. Ass'n of Des Moines, Iowa, v. Lester

• Decision Date: 07 April 1919
• Docket Number: 5204.
• Citation: 257 F. 225
• Court: U.S. Court of Appeals — Eighth Circuit
• Parties: INTERSTATE BUSINESS MEN'S ACC. ASS'N OF DES MOINES, IOWA, v. LESTER.

257 F. 225

INTERSTATE BUSINESS MEN'S ACC. ASS'N OF DES MOINES, IOWA, v. LESTER.

No. 5204.

United States Court of Appeals, Eighth Circuit.

April 7, 1919

Robert M. Haines, of Des Moines, Iowa (S. D. Bishop, of Lawrence Kan., and Dunshee, Haines & Brody, of Des Moines, Iowa, on the brief), for plaintiff in error.

Henry H. Asher and M. A. Gorrill, both of Lawrence, Kan., for defendant in error.

Before HOOK and CARLAND, Circuit Judges, and AMIDON, District Judge.

AMIDON District Judge.

This action was brought by the plaintiff, Mrs. Lester, against the Insurance Association, as defendant, to recover on an accident policy covering the life of her husband, Dr. Pliny P. Lester. The policy insured him 'while he is engaged in the occupation of a physician and surgeon * * * in case of death effected directly and independently of any other contributing, concurring or intervening cause, by external violent and accidental means. ' When the insurance was taken out, in January, 1913, and at the time of his death Dr. Lester was engaged in the practice of his profession at Walsenburg, in the state of Colorado, which is one of the important towns in the district covered by the mining operations of the Colorado Fuel & Iron Company. He was also a member of the National Guard of Colorado, holding the rank of major, and assigned to the medical corps. During the fall of 1913, and the winter and spring of 1914, the employes of the Colorado Fuel & Iron Company were engaged in a strike, which for months assumed the form of belligerent opposition to the authorities of the state. The Governor called the National Guard into service to protect life and property in the district. Dr. Lester joined his company as a part of its medical corps. He was not otherwise connected with the military operations. He was equipped with no gun or sword. The only weapon upon his person was a pistol, which he carried in his pocket. He wore the insignia of the Red Cross and his work was confined to carrying for the sick and wounded. At times his service seems to have taken him away from his home town. Part of the time he was at Ludlow, but at the time of his death he was stationed at Walsenburg, and was engaged there in the practice of his profession, and at the same time performing such duties as were necessary in connection with the military force that was located in the city, numbering about 600 men. On the morning of April 29, 1914, he visited a number of his patients in Walsenburg, professionally. He then went with a small detachment, consisting of 30 men, to a point a few hundred yards from the city; the force having been sent out to reconnoitre and resist, if necessary, the activities of strikers who were in the foothills or mountains near the town. The lieutenant of this force was wounded. Dr. Lester had just finished dressing his wound, and was down on his hands and knees in a railroad cut observing some men through his field glass, to decide whether they were strikers or soldiers. He was shot, and died almost instantly.

The case was tried in the lower court before a jury, but at the conclusion of the evidence motions were made by both parties for a directed verdict. The jury was excused, pursuant to written stipulation, and the case submitted to the judge for decision. He found in favor of the plaintiff, and entered judgment for the full amount of the policy. The Insurance Association brings error to review that judgment.

In the trial court and here the case turns wholly upon two questions: (1) Was Dr. Lester at the time of his death 'engaged in the occupation of a physician and surgeon'? (2) Was his death effected wholly by 'accidental means'?

In our judgment the first question is answered by the stipulation of facts, which was signed by the parties. It reads as follows: 'It is agreed and hereby stipulated by and between the parties to this action that the insured, Dr. P. P. Lester, was on the 17th day of January, 1913 (the date of the policy), a resident of Walsenburg, Colo.; that at that time his only occupation was that of a physician and surgeon, and that his duties were fully described as those of 'general practice'; that he continued in the general practice of medicine and surgery in and about Walsenburg, Colo.; and that on the morning of April 29, 1914, he called professionally and rendered professional services to several of his patients in the vicinity of Walsenburg.

'It is further agreed and hereby stipulated that the said Dr. P. P. Lester was on the 17th day of January, 1913, a surgeon in the medical corps of the Colorado National Guard, and continued to be such until the time of his death, at which time he held the rank of major, and was performing the duties of a surgeon in the said medical corps of the Colorado National Guard; that at all the times above mentioned he was a member of the American Red Cross Society.'

This, in our judgment, shows beyond reasonable controversy that Dr. Lester, at the time of his death, was engaged in the occupation of a physician and surgeon. This is the showing, not only of the stipulation, but of the evidence.

The defendant insists that the language of the policy, when fairly interpreted, confined Dr. Lester to the practice of his profession in the ordinary walks of civil life; that, when he joined his company in the military service to which it was called, he changed his vocation and became, instead of a physician and surgeon, a soldier. We do not think this position can be sustained without disregarding the facts. His service with his company was temporary. He was called out to meet an emergency. While the service lasted for some months, it was a side issue. It was known that it would be temporary, and was to be considered as answering a call to suppress a riot, or any other temporary engagement. This measures the term of the service; but we are to look at the character of the service also. Dr. Lester was in no way engaged in the military activities of his company. His services there were those of a physician and surgeon. He continued to practice his profession at Walsenburg, as well as attend to the needs of his company. The authorities are uniform that such temporary changes do not constitute a change of occupation within the meaning of insurance policies. To constitute such a change there must be an abandonment of the vocation specified in the policy and the adoption of some other calling. The record here affirmatively shows that there was no such change; on the contrary, it shows that Dr. Lester was engaged on the very morning of his death in the practice of his profession in the community where he resided, and, so far as his service in the company is concerned, it shows that he was there also engaged in the occupation of a physician and surgeon, and had been practicing that profession only an instant before his death. If such temporary activities are to destroy the protection of insurance, it must be by an express provision in the policy. Such exceptions have long been a feature of accident contracts. Their omission must be held to spring from deliberate purpose.

The language of Judge Hook, speaking for this court in Railway Mail Association v. Dent, 213 F. 981, 983, 130 C.C.A. 387, 389 (L.R.A. 1915A, 314), is equally appropriate here.

'So many and varied are the causes of accidental injury that the particular language employed in instruments of insurance is of the greatest importance. A word added or omitted may alter materially the scope of the indemnity. Many cases like the one at bar lie close to the border line, perhaps, because not definitely in mind for inclusion or exclusion; but it is a delicate thing for a court to adopt the latter course, merely upon a supposition that they would have been excluded in terms, had they been thought of. The insurer most familiar with the subject chooses the words of his undertaking, and it is not unjust to take them in the sense conveyed to the ordinary reader, nor to hold against him in case of real substantial doubt.'

What the company is really asking us to do is...