Johnson v. London Guarantee & Acc. Co.

• Decision Date: 23 November 1897
• Citation: 72 N.W. 1115,115 Mich. 86
• Parties: JOHNSON v. LONDON GUARANTEE & ACCIDENT CO.
• Court: Michigan Supreme Court

72 N.W. 1115

115 Mich. 86

JOHNSON v. LONDON GUARANTEE & ACCIDENT CO.

Supreme Court of Michigan

November 23, 1897

Error to circuit court, Wayne county; William L. Carpenter, Judge.

Action by Benjamin Johnson against the London Guarantee & Accident Company. There was a judgment for plaintiff, and defendant brings error. Affirmed.

Plaintiff took out an accident policy in the defendant company in the year 1892, for the sum of $3,000 with a weekly indemnity of $15, "against bodily injuries sustained through external, violent, and accidental means." A written application was made, which was a part of the policy. The premium was $4 per $1,000. In his application he represented that he was "engaged in the business or occupation of secretary and treasurer to Hull Bros. Company, grocers," under the classification "select"; and the policy contained the same language. The policy was twice renewed. At the time of the application, and until the time of the accident, he resided on his farm in Monroe, Mich. As a part of the policy, he agreed "that, if injured while engaged in work or duty classed as more hazardous than my occupation above stated, I shall be entitled to recover only such amount as the premium paid by me would purchase at rates fixed for such increased hazard." A part of the business of his farm was raising cattle. He kept a bull. The bull had broken into his calf pasture. On October 29, 1895, while returning from his greenhouse to his dwelling, about 11 o'clock, he saw the bull in this pasture, and went in to drive him out. The cause of the injury is thus stated in his notice to the company "Where and how did the accident occur?" "The bull had broken through a fence, into a pasture kept on purpose for calves. He undertook to drive him out, when the bull turned suddenly, and tossed him." "What were you doing at the time?" "Walking around; looking about." "State just what happened." "Seeing the bull in the calves' pasture, he undertook to drive him out, when the bull suddenly turned around, and tossed him." Some time before the accident, Hull Bros. had sold out their entire stock and business, and plaintiff had no employment from them except to assist in collecting accounts. At the time he was superintending the building of a greenhouse, and had been home for about a week. He testified that two men "were managing my farm at the time of the accident. It was their business to take care of the stock. Between them they had the entire charge of it. That included the bull. I left everything in charge of the two men. When I was there, I took charge of it as I saw fit." A letter written in his name by his sister-in-law, under date of November 5, 1895 contained the following statement: "I left Detroit about the middle of September. Some weeks before that, I bought a plant of five greenhouses from Mr. C. Hogg, of Van Dyke avenue, Detroit, and came home to add the florist's business to what I already had on the island, and took the management of the farm, fruits, and greenhouses; having two men working the farm and vegetable garden. I have already told you, when I filled out your form, just how I came to meet with the accident, and cannot understand what more you want to know." Under date of November 2d, she wrote to defendant the following letter: "I have submitted your letter to Mr. Ben Johnson. He came home after Hull Bros. sold out to Mr. J. L. Hudson, about the middle of September; but before that time, he bought a greenhouse plant in Detroit, and was working to get it in place, and was still working at it at the time of the accident. Mr. Ben Johnson owns Johnson's Island, in the city of Monroe, upon which place he has cattle, and has been raising small fruits for the last five years. He does not wish to hold back any information in regard to the accident. If there should be anything more you wish to know, let me hear from you." Plaintiff introduced testimony showing that the bull had never before shown signs of viciousness, although he testified: "I have heard of the boys going along the river, and teasing the bull, and I presume sometimes the bull had cause to be ugly." In his claim for indemnity, the following question and answer were given: "Q. What was your weekly salary or income at the time you were injured? A. None; the business in liquidation." He had a contract for employment with Hull Bros., which did not expire until some time after the injury. He testified: "I received a salary up to a week before the accident. I was not receiving any salary at the time because there was no money. I was not receiving any money for my time." Insurance is classified by defendant as "select, preferred, ordinary, medium, hazardous, and extrahazardous." Under this classification, farming was deemed hazardous, and the annual premium was $15 per $1,000. The plaintiff recovered $260, the full amount claimed.

Charles S. McDonald (S. S. Babcock, of counsel), for appellant.

Sloman & Groesbeck (Emanuel T. Berger, of counsel), for appellee.

GRANT J. (after stating the facts).

1. Counsel urge that the court erred in not directing a verdict for the defendant, on the ground that the plaintiff had voluntarily exposed himself to unnecessary danger. The...