Kenny v. Bankers' Accident Ins. Co. of Des Moines

• Decision Date: 24 October 1907
• Citation: 136 Iowa 140,113 N.W. 566
• Parties: KENNY v. BANKERS' ACCIDENT INS. CO. OF DES MOINES.
• Court: Iowa Supreme Court

136 Iowa 140

113 N.W. 566

KENNY

v.BANKERS' ACCIDENT INS. CO. OF DES MOINES.

Supreme Court of Iowa.

Oct. 24, 1907.

Appeal from District Court, Sioux County; J. L. Kennedy, Judge.

Action at law upon a policy of accident insurance. From a verdict and judgment for plaintiff, defendant appeals. Affirmed.N. T. Guernsey, Chas. Hutchinson, and Orr & Te Paske, for appellant.

Clarence A. Plank and Ericson & Stickney, for appellee.

DEEMER, J.

In the year 1901, defendant company issued to plaintiff an accident insurance policy, whereby it insured him against bodily injury caused solely by external, violent, and accidental means, agreeing to pay during the continuance of nonfatal injuries $25 per week for a time not exceeding 52 weeks, which said injuries should independently of all other causes immediately, wholly, and continuously disable him from transacting any and every kind of business pertaining to his business as stated in his application. The policy also contained these provisions:

“In the event of claims for indemnity on account of disabling injuries of which there is no external mark on the exterior of the body of the assured visible to the eye, accidental injuries resulting in or from or caused directly or indirectly, wholly or in part by hernia, fits, vertigo, somnambulism, or disease in any form, or while the member is affected therewith or thereby, then and in every such case the liability of this company shall be $250.00 for accidental death or $10.00 per week for a period not exceeding ten weeks for injuries causing total disability. * * * (7) If the assured shall change his occupation to or be injured in any occupation or exposure or in performing acts classified by this company as more hazardous than that in which the member was classed when accepted, then and in all such cases, the insurance fixed indemnity or weekly indemnity payable shall be only the amount fixed for such increased hazard in accordance with the classification of risks by the company and as per the table on the back hereof. * * * (10) Insurance in this company is not forfeited by a temporary change of occupation; the following table will apply according to the classification of the company in case of accidental injury while engaged temporarily in any occupation classified by the company as more hazardous than that under which this policy is issued. If accidentally injured while engaged in any occupation classed below extra hazardous, the company will pay $100 death benefit or $2.50 weekly indemnity.

+--------------------------------------------------+
                ¦Classification. Below Preferred.¦Weekly Indemnity.¦
                +--------------------------------+-----------------¦
                ¦Ordinary                        ¦80%              ¦
                +--------------------------------+-----------------¦
                ¦Medium                          ¦60%              ¦
                +--------------------------------+-----------------¦
                ¦Special                         ¦40%              ¦
                +--------------------------------+-----------------¦
                ¦Hazardous                       ¦20%              ¦
                +--------------------------------+-----------------¦
                ¦Extrahazardous                  ¦10%”             ¦
                +--------------------------------------------------+
                

In his application for insurance, plaintiff stated that his occupation was that of manager of the Hawarden Flour Mill, of which he was proprietor, and that the more hazardous duties connected therewith were office duties and overseeing. Defendant in its answer pleaded that plaintiff was not engaged in the business stated by him, but in a more hazardous one; that his injuries were such as that he was not entitled to the $25 per week for 52 weeks; that his trouble was not due to the accident he received, but to rheumatism; that the action was not commenced within the time provided by the policy; that in no event was plaintiff entitled to more than $100; that in his written application plaintiff stated that no accident company had ever rejected his application or canceled his policy, which was false and untrue; and some other matters not necessary to be mentioned. Upon these issues, the case was tried, resulting in a verdict for plaintiff in the sum of $1,300.

The questions presented by the appeal render it necessary to state some of the facts. The evidence shows that plaintiff, at the time of taking out his insurance, and for some time prior and subsequent thereto, operated a flour mill and was engaged in the manufacture of flour and feed, for a time as part owner and then as owner; that he was night miller, day miller, and then manager. Just prior to the accident his principal work was in the office supervising and waiting on trade and buying wheat. We now quote the following from his testimony: “I did not as a rule attend to the machinery at that time. I think I hired a miller in the winter of 1901 and 1902. Prior to that time I had been able to do, and had done, the work around the mill, rather than overseeing it. I ran the mill for 12 or 13 years. I did the work of waiting on the trade, and had something to do with the running of the machinery, and did the repairing on the machinery if it needed it. I worked around and supervised. I did a miller's work. Prior to the hiring of a miller in the winter of 1901 and 1902, I had assisted in the work of grinding, as well as waiting on customers. After getting the elevator, that needed more attention to take care of that branch of the business, and this miller attended to the grinding, and so on, principally. I looked after the machinery more or less prior to getting the miller. My partner and myself did that work between us, and I have another man that has been with me 14 years. My partner was with me until 1898.” Plaintiff gave the following account of the accident which he received: “On the 24th day of July, 1902, I started on my vacation to Manchester, Iowa. I went to see my brother and other relatives. My brother's name is Joseph B. Kenny, and he lived about two miles from Manchester and was in the dairy farming business. I got to my brother's place on the evening of the 25th and was hurt on the 30th. Between those days I visited with my brother, called on the old neighbors, and did some hunting, and on the 30th I went out to mow a piece of grass for my brother at about 10 o'clock in the forenoon. My condition of health was good at that time, and I had not been suffering from any disease or trouble. I was in vigorous health and did not have any pains at that time, nor had I any for a long time prior. I had a new six-foot McCormick mower. It had an iron seat, the usual form of all seats on mowing machines. The seat had raised edges all around it, and in the center of the seat there was a raised portion right in front. It was cast iron, with holes or slits in it. The raised rim was perhaps two-thirds of the way around the sides, and it was open in front, except this raised saddle in the center. The edge of the seat in the forepart and sides of this saddle was pretty sharp iron. I hitched on the mower, which had been left on a piece of ground that had already been cut over, not far from the piece I wanted to mow, a 20-acre field. It was a small point up at the top of the field that had been drained. That drain came down by the fence until it got near the end of the 20 acres, and cut off down across the road, leaving a small three-cornered piece. In order to get over to that three-cornered piece, we had to cross this little ditch. It had been a very wet season that year, and usually there was no water in that ditch at that time of the year. But it had been a very wet season, and there was quite a pitch coming down to the ditch. The ditch itself was not very deep, but there was quite a pitch on both sides, rather a sharp pitch. When the horses went down into that they did not see the water as I supposed until they got on that pitch, and they jumped the ditch, and the mower went into the ditch, and, the horses going pretty rapidly, the outside end of the sickle bar caught on the bank of the ditch, stopping the machine at once. The shock of the sudden stopping of the machine throwed me up...