Joseph Duran v. Standard Life & Accident Ins. Co
| Decision Date | 01 January 1891 |
| Citation | 22 A. 530,63 Vt. 437 |
| Parties | JOSEPH DURAN v. STANDARD LIFE & ACCIDENT INS. CO |
| Court | Vermont Supreme Court |
JANUARY TERM, 1891
Judgment reversed, and judgment for defendant.
Seneca Haselton and L. F. Englesby, for the defendant.
This is an action of assumpsit on two policies issued by defendant to plaintiff, insuring him against accidental injuries. If the plaintiff has any ground of recovery, its rests wholly on these contracts of indemnity. A contract of insurance is to be construed according to its terms and the evident intent of the parties as gathered from the language used. All conditions involving forfeitures, as well as all exemptions, are to be construed strictly against the insurer and most favorably for the insured. Yet the language of the contract is to be construed as a whole, is to receive a reasonable interpretation, and the risk is not to be extended beyond what is fairly within the terms of the policy. May on Ins. (2d Ed.) ss. 172, 175; Brink v Ins. Co., 49 Vt. 442. Mosley v. Ins Co., 55 Vt. 142; Darrow v. Family Fund Soc., 116 N.Y. 537; S. C. 15 Am. St. Rep. 430; Mutual Assurance Soc. v. Scottish Union & Nat'l Ins. Co., 84 Va. 116; S. C. 10 Am. St. Rep 819.
Each policy contains the following clause: "This insurance does not cover * * * injury resulting wholly or partly, directly or indirectly, from any of the following acts, causes or conditions, or when effected by any such act, cause or condition, or under its influence." Then follows an enumeration of such acts, causes or conditions, among which is "violation of law" by the insured.
The injury for which plaintiff seeks to recover is an injury to his knee sustained by him on Sunday, January 20, 1889. The plaintiff and a companion about nine o'clock in the forenoon of that day took guns and ammunition and set out from Burlington on foot for Colchester on a hunting expedition. They traveled on the highway six or seven miles, and then took dinner with a Mr. Coates. After dinner they engaged in hunting with Coates who went with them as far as a Mr. Thayer's where they stopped a short time. Here Coates left them, and the plaintiff and his companion started for home through a field, and while crossing frozen plowed ground in the field to get to the highway, the plaintiff's foot slipped upon the frozen plowed ground and his knee was injured. At the time of slipping he was carrying his gun. The accident occurred between two and three o'clock in the afternoon.
The defendant contends that the facts of the case bring it within the provisions of the policy in respect to violations of law, and that therefore the plaintiff cannot recover.
R. L. 4315 prohibits traveling on Sunday, except from necessity or charity, or visiting from house to house except from motives of humanity or charity or for moral or religious edification. R. L. 4316 prohibits hunting, shooting, pursuing, taking or killing wild game or other birds or animals, on Sunday. A person violating the provisions of either of these sections is to be fined.
At the time of the accident the plaintiff was engaged in hunting. He had his gun with him and was ready to shoot any game he might see, whether in the field or along the highway on his way home. He started out to secure game wherever he might find it, and it does not appear that at the time of the accident he had abandoned this purpose. In hunting, he was violating the law of this state. The traveling of the plaintiff was as much a part of his act of hunting as carrying his gun and ammunition or shooting or capturing game when the opportunity occurred in the course of the hunt. Without walking, the plaintiff could not have engaged in his hunt. Thus the accident was caused directly by plaintiff's violation of the law in hunting.
The effect of the violation of the Sunday law upon a person's right to recover for injuries received in the course of such violation, has generally arisen in cases in which the defendant sought to escape responsibility for his own tort to a traveler or laborer. On this question the decisions have not been uniform. Some courts have held that the immediate cause of the injury was the travel or labor on Sunday, and that the plaintiff could not recover. Of this class of cases are Day v. Highland St. Ry. Co., 135 Mass 113; S. C. 46 Am. Rep. 447; Cratty v. Bangor, 57 Me. 423; S. C. 2 Am. Rep. 56. Other able courts have held that a Sunday traveler or laborer, injured by the wrongful act or neglect of another, might recover upon the ground that the violation of the Sunday law by the injured party is in the nature of a condition rather than an immediate cause of the injury. To this effect are Baldwin v. Barney, 12 R.I. 392; S. C. 34 Am. Rep. 670; Platz v. City of Cohoes, 89 N.Y. 219; S. C. 42 Am. Rep. 286; Sutton v. Town of Wauwatosa, 29 Wis. 21; S. C. 9 Am. Rep. 534. In Johnson v. Irasburgh, 47 Vt. 28, the court avoided the line of...
To continue reading
Request your trial