Lamb v. The Liberty Life Insurance Company

• Decision Date: 07 December 1929
• Docket Number: 28,901
• Citation: 129 Kan. 234,282 P. 699
• Parties: FERN LAMB, Appellee, v. THE LIBERTY LIFE INSURANCE COMPANY, Appellant
• Court: Kansas Supreme Court

282 P. 699

129 Kan. 234

FERN LAMB, Appellee, v. THE LIBERTY LIFE INSURANCE COMPANY, Appellant

No. 28,901

Supreme Court of Kansas

December 7, 1929

Decided July, 1929.

Appeal from Crawford district court; LELAND M. RESLER, judge.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. INSURANCE--Specific Exceptions to General Rule--Burden of Proof. Rule followed that when an insurer seeks to avoid liability on the ground that the accident or injury for which compensation is demanded is covered by some specific exception to the general terms of the policy, the burden rests upon the insurer to prove the facts which bring the case within such specified exception.

2. ACCIDENT INSURANCE--Injury While Violating Law--Speed Ordinance. In an action to recover on an accident insurance policy which provided for no liability in case the insured was violating the law when death ensued, there was evidence that the insured at the time of the accident was driving an automobile at an unlawful rate of speed. Held, error not to have required the jury to answer at what rate of speed the automobile was traveling at the time of the accident when the question was properly submitted.

Stephen H. Allen, Otis S. Allen and George S. Allen, all of Topeka, for the appellant.

Thos. D. Winter, of Girard, and E. W. Patterson, of Pittsburg, for the appellee.

Hopkins J. Harvey, J., dissenting.

OPINION

HOPKINS, J.:

The action was one to recover on an accident insurance policy for the death of plaintiff's husband. Plaintiff prevailed, and the defendant appeals.

The facts were substantially these: Plaintiff's husband held an accident policy in the defendant company in which the plaintiff was named beneficiary. The policy provided for payment if the insured was killed while operating, driving, riding in or on, demonstrating, adjusting or cranking an automobile, or in consequence of being struck, run down or over; or death caused by the burning or explosion of an automobile; but did not cover loss or death resulting from or in consequence of the insured performing the duties of a mechanic in repairing, overhauling or testing an automobile. Plaintiff's amended petition alleged that the injuries sustained by her husband were without any voluntary or intentional act on his part; that his injury and death were caused wholly by accidental means and that they did not result while the insured was performing the duties of a mechanic in repairing, overhauling or testing an automobile. The defendant answered by denying generally the affirmative parts of the petition and affirming the negative parts last above mentioned; that is to say, the defendant challenged the allegation that the deceased was not killed while performing the duties of a mechanic in repairing, overhauling or testing an automobile.

The deceased at the time of the issuance of the policy was in the employ of one C. E. Diel, of Girard. This employment continued for a period of eleven months, until Lamb's death. There was evidence to the effect that it was Lamb's duty to perform general work around the garage and service station; that on March 10, 1927, one S. A. Williams made arrangements to rent a big-six Studebaker automobile from Diel. Diel testified that this car was in good mechanical condition, as he had worked on it a day or so before. Lamb was instructed to drain oil from the car and fill it with gasoline, but he did no mechanical work thereon. After Lamb had serviced the car he and Williams took a ride in it and while on this ride collided with another car and Lamb was killed. The evidence showed that Diel permitted Lamb to drive his (Diel's) car when he so desired; that on the occasion in question Diel did not order Lamb to take the car out or to test it and did not know that he had done so.

The defendant contends that in order for the plaintiff to recover it was necessary for her to prove that Lamb was not testing the automobile at the time he was injured. On the other hand, the plaintiff argues that the clause in the policy providing, "but the insurance hereunder does not cover loss resulting from or in consequence of performing the duties of a mechanic in repairing, overhauling or testing an automobile," is a specific exception to the general terms of the policy; that if the defendant seeks to avoid liability on the ground that the accident occurred while the insured was performing the duties of a mechanic, the burden of proof is on the defendant to prove the facts which bring the case within this exception. In Sears v. Insurance Co., 108 Kan. 516, 196 P. 235, it was said in the opinion:

"Touching the burden of proof, the well-established rule is that when an insurer seeks to avoid liability on the ground that the accident or injury for which compensation is demanded is covered by some specific exception to the general terms of the policy, the burden rests upon the insurer to prove the facts which bring the case within such specified exception. (1 Cyc. 290; 1 C. J. 497.)

"In 14 R. C. L. 1437, it is said: 'Where proof is made of a loss apparently within a policy, the burden is on the insurer to prove that the loss arose from a cause for which it is not liable. Accordingly while the plaintiff in an action on an accident policy must prove that the death was caused by accidental...