L'Ecuyer v. The Indemnity Life & Accident Company of Minneapolis

• Decision Date: 11 March 1916
• Docket Number: 20,011
• Citation: 155 P. 1088,97 Kan. 540
• Court: Kansas Supreme Court
• Parties: EDITH L'ECUYER, Appellee, v. THE INDEMNITY LIFE & ACCIDENT COMPANY OF MINNEAPOLIS, Appellant

155 P. 1088

97 Kan. 540

EDITH L'ECUYER, Appellee, v. THE INDEMNITY LIFE & ACCIDENT COMPANY OF MINNEAPOLIS, Appellant

No. 20,011

Supreme Court of Kansas

March 11, 1916

Decided, January, 1916.

Appeal from Cloud district court; JOHN C. HOGIN, judge.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

ACCIDENT INSURANCE -- Death by Fire -- Not Within Terms of Policy. The undisputed facts involved herein examined and held to be such that it was error to overrule the demurrer to the plaintiff's evidence, and that the instructed verdict requested by the defendant should have been directed.

Homer Kennett, Olin Hunter, both of Concordia, Henry W. Benton, and Frank J. Morley, both of Minneapolis, Minn., for the appellant.

Edgar Bennett, of Washington, Park B. Pulsifer, Charles L. Hunt, Clyde L. Short, all of Concordia, and P. M. Harmon, of Clyde, for the appellee.

West, J., West, J. dissenting.

OPINION

WEST, J:

Plaintiff sued to recover on an accident insurance policy for the death of her husband, alleging that he received his injuries by the burning of a grocery store while he was therein. The clause of the policy relied on by the plaintiff provided for the payment of $ 2400 for death caused "(4) By the burning of a Dwelling, Hotel, Office Building, Theatre, School Building, Lodge Room, Club House, Store or Barn, while Assured is Therein." Several members of the family were in the building at the time of the injury, and the testimony was, in substance, that the day was very hot, the store building was about eighty feet long north and south, a coal-oil tank being in the southeast corner, an elevator on the west, a cashier's desk about twenty-five feet north of the elevator. About five-thirty in the evening the deceased went back to the tank to pump three gallons of oil into a five-gallon can, and was pumping it from a measuring tank of oil. An explosion occurred, after which the deceased was seen getting up from the floor. One witness looked towards the southeast corner of the store, and all he could see was flames; did not see the decedent then but did in a minute or two. The latter ran out of the building enveloped in flames and threw himself into a water tank. He had on a pair of pants and a shirt, which were found saturated with coal oil. The fumes of kerosene could be smelled in the room after the explosion, but none was burned except what was in the five-gallon can. The main tank was not affected. The five-gallon can was found split open, but the cap was still on the spout, the latter being blown from the can and about fifteen feet therefrom. Flames were seen in the southeast corner of the store; fire ran to the north door, some sixty or seventy feet. A refrigerator and all articles within twenty-five feet of the back end, and the floor, were burned. Ceiling, shelving and counters were burned. Fire ran clear to the north door, sixty or seventy feet, and broke the plate glass in front; collected $ 900 loss on building from insurance company. The burns were first, second and third degrees, on the neck, right ear, right arm, back and abdomen, causing death in about one week. One witness testified that before the deceased reached the tank he looked like a ball of fire; that the upper part of his clothing was mostly burned off; left leg of trousers burned; pulled the back of the trousers off and pulled a button out of the flesh with the clothing; burned more by the collar, under the ear, than any other place. The father testified, among other things, that the building was not on fire prior to the explosion; that the decedent got up immediately after the explosion and ran out of the building, his clothing on fire; also that the noise attracted his...