National Life & Acc. Ins. Co. v. Barlow

• Decision Date: 28 February 1933
• Citation: 247 Ky. 809,57 S.W.2d 997
• Parties: NATIONAL LIFE & ACCIDENT INS. CO. v. BARLOW.
• Court: Kentucky Court of Appeals

57 S.W.2d 997

247 Ky. 809

NATIONAL LIFE & ACCIDENT INS. CO. v. BARLOW.

Court of Appeals of Kentucky

February 28, 1933

Appeal from Circuit Court, Bourbon County.

Action by Nell Barlow against the National Life & Accident Insurance Company. Judgment for plaintiff, and defendant appeals.

Affirmed.

Chas A. McMillan, of Paris, for appellant.

George Batterton, of Paris, for appellee.

RATLIFF Justice.

On October 8, 1930, Charles E. Barlow entered into a contract of insurance with the National Life & Accident Insurance Company, in which his wife, Nell Barlow, appellee herein, was named beneficiary. A copy of the policy, filed with the petition, discloses that the insured gave his occupation as that of a tire salesman, office and selling duties in store only. The principal sum stipulated in the policy was $1,000 and the insured paid a premium of $3.60 per month, which was the rate of premium to be paid for the occupation named.

On the 6th day of December, 1931, the insured, Charles E. Barlow engaged in assisting the fire department of the city of Paris in fighting a fire. He was not employed as a fireman, and received no compensation for his services. His assistance was that of a volunteer. While thus engaged in fighting the fire, a brick wall fell upon him which resulted in his death.

The appellee, Nell Barlow, who was named beneficiary in the policy, instituted this suit in the Bourbon circuit court for the recovery of the face of the policy, $1,000, designated therein, as the principal sum. Later by an amended petition the plaintiff below asked for an additional sum of $200, pursuant to a clause in the policy which reads as follows:

"For each period of three consecutive months of such time as this policy shall have been continuously in force immediately preceding the date of the accident, five per cent. shall be added to the initial principal sum until such additions shall amount to 50 per cent. of such initial principal sum, and thereafter, if this policy is kept in continuous force it shall be further increased by the addition of the total amount of premiums paid on this policy prior to the date of any such specific loss.

The amount of 'the principal sum' as used herein shall be the initial principal sum plus any such additions that may have accrued at the date of any such specific loss."

In her amended prayer, she asked that she be adjudged the sum of $1,200.

The insurance company in its answer denied liability for the principal sum of the policy or any sum more than $120, which it tendered and offered to pay the plaintiff. It bases its defense on a clause in the policy, which reads:

"This policy includes the indorsements and attached papers, if any, and contains the entire contract of insurance except as it may be modified by the company's classification of risks and premium rates in the event that the insured is injured or contracts sickness after having changed his occupation to one classified by the company as more hazardous than that stated in the policy, or while he is doing any act or thing pertaining to any occupation so classified, except ordinary duties about his residence or while engaged in recreation, in which event the company will pay only such portion of the indemnities provided in the policy as the premium paid would have purchased at the rate, but within the limits so fixed by the company for such more hazardous occupation."

Appellant insists that Charles E. Barlow was insured under class A as a tire salesman, but when he was killed he was performing the duties of a fireman, acting as hoseman, which occupation is classed X in the manual of the insurance company, and that, according to the classification X, the policy should be adjusted on that basis, which was the sum of $120.

The defendant further pleads in his answer that at the time the insured was injured he was not performing the duties of a tire salesman, but was engaged as a fireman, an occupation or act more hazardous than that of a tire salesman. A demurrer was filed to the answer and overruled. Plaintiff then filed her reply, in which she alleged that Charles E. Barlow was killed while engaged in an act not pertaining to his duties as a tire salesman; that at the time he was killed he was not following an occupation, nor in an occupation as a fireman or hoseman, and had not changed his occupation from that of a tire salesman; that he was merely performing a voluntary act which was not pursuant to his usual occupation as a tire salesman; neither was said act pursuant to an occupation as a fireman or hoseman; that he went to the place of said fire voluntarily, aided and assisted the firemen in fighting the fire, and while so doing, received the injuries which caused his death. The defendant filed demurrer to the reply, which was also overruled, whereupon defendant filed its rejoinder. After denying the allegations of the reply, it (appellant) pleaded affirmatively that the decedent, Charles E. Barlow, at the time he received the injury, was following a habit, and that it was the habit of the decedent when there was a fire alarm to go to the fire and volunteer his services as an extra fireman without compensation, and that, while acting as a hoseman the said injury occurred, and further alleged that he received his injury while doing an act or thing pertaining to the occupation of a fireman and that the said thing he was doing was not at his home nor did not pertain to the ordinary duties about his residence, as stipulated in the policy. A demurrer was filed to the rejoinder which was sustained. Defendant declined to plead further, and the court rendered judgment in favor of the plaintiff, appellee herein, in the sum of $1,200, in acordance with the prayers of the amended petition, from which judgment the insurance company has prosecuted this appeal.

It is insisted for appellant that the demurrer to the petition should have been sustained. But we think the allegations of the petition taken together with the insurance policy under the law applicable thereto, stated a cause of action. Aetna Insurance Co. v. Milward, 118 Ky. 716, 82 S.W 364, 26 Ky. Law Rep. 589, 68 L. R. A. 285,...