Parker v. North Am. Accident Ins. Co.

• Decision Date: 13 February 1917
• Docket Number: No. 3211.,3211.
• Citation: 79 W.Va. 576
• Court: West Virginia Supreme Court
• Parties: Parker v. North American Accident Ins. Co.

79 W.Va. 576

Parker

v.North American Accident Ins. Co.

No. 3211.

Supreme Court of Appeals of West Virginia.

Submitted February 6, 1917.

Decided February 13, 1917.

1. Insurance Accident Insurance Classification Estoppel.

An accident insurance company is estopped to deny that a party insured by it was placed in the wrong classification, when such classification was made by its agent upon full and truthful information given such agent as to the employment and occupation of the assured, (p. 580).

2. Same Accident Insurance Amount of Indemnity Reduction.

An accident insurance company will not be permitted to reduce the amount of indemnity provided to be paid by the terms of an accident insurance policy by reason of a provision in such policy that in the event of the death, injury or disability of the insured while engaged temporarily or otherwise in any calling or occupation deemed more hazardous than the classification to which the insured is assigned in the policy, the insured or beneficiary shall be entitled to recover only the indemnity which the premiums paid would have purchased in the more hazardous class as shown by the company's manual, when it is shown that the classification of the insured contained in the policy was made by the company's agent after a full and truthful statement of the employment and occupation of insured, and the injury for which indemnity is claimed was sustained while insured was engaged in the occupation of which the company's agent had full information at the time he made such classification, although the occupation in which insured was engaged at the time of the accident was, by the terms of the company's manual, more hazadous than that under which he was classified in the policy of insurance, (p. 580).

3. Same Accident Insurance Indemnity Class Estoppel.

An accident insurance company will not be permitted to reduce the amount of indemnity provided to be paid by the terms of a policy of insurance by reason of a provision in such policy that in the event of an injury from unnecessary exposure to apparent danger the limit of the company's liability shall be one-fifth of the amount that would otherwise be payable, when it is shown that the company's agent, after full and truthful information given him as to the insured's employment and occupation, placed the insured in the classification shown by the policy, and the injury for which indemnity is claimed was sustained while insured was engaged in the occupation given such agent. In such case the company is estopped to say that insured was unnecessarily exposing himself to apparent danger by engaging in his occupation as given to the agent at the time the insurance was applied for. (p. 580).

4. Same Accident Insurance "Visible Marks on the Exterior of

the Body."

Ordinarily in case of an immediately fatal accident, the difference in the appearance of insured just before the accident and of his dead body immediately thereafter is a sufficient visible mark upon the body of the insured to prevent the reduction of the indemnity provided in the policy under a provision therein contained that in case of injuries, fatal or otherwise, of which there shall be no visible marks on the exterior of the body, the limit of the company's liability shall be one-fifth of the amount that would otherwise be payable under the policy, (p. 584).

Error to Circuit Court, Ohio County.

Action by J. N. J. Parker against the North American Accident Insurance Company. Judgment for plaintiff, and defendant brings error.

Affirmed.

Erskine, Palmer & Curl, for plaintiff in error. McCamic & Clarke, for defendant in error.

Ritz, Judge:

William H. Parker, plaintiff's son, was a student in the Wheeling high school. He was captain of the football team, and a member of the baseball team of said high school, and was very much interested in amateur athletics. In the month of June, 1915, his father, plaintiff here, decided that he would procure accident insurance for the benefit of his son, fearing injury as the result of his engaging in the above-mentioned pursuits. He applied to the agent of the defendant company for this purpose. An application was filled out at that time. Plaintiff stated to the agent that his boy was a high school student; that he was captain of the football team, and was a member of the baseball team, and very much interested in athletics; and that he desired accident insurance for him on this account. Defendant's agent informed the plaintiff that a student's time was of no value, and asked him if he was engaged in anything else. Plaintiff then informed the agent that in addition to his work as a high school student he helped the plaintiff in his store in the mornings before school; and that two or three evenings after school of each week he went around in the near-by towns and solicited orders for the plaintiff; and that during vacations of the school he was regularly employed in soliciting orders and working for the plaintiff in his business. These representations of the occupation or occupations of the plaintiff's son were truthful, and upon the same the defedant company's agent classified him as "travelling salesman, by rail, selling to dealers, not peddler." The policy of insurance sued on in this case was issued upon this application. The monthly premiums were regularly paid thereon by the plaintiff. On the 20th of November, 1915, the insured, while engaged with his team in a football game at Buckhannon, West Virginia, and making a play peculiar to that game, brought his head in contact with the knee of a player on the opposing team with such force that he was rendered unconscious from the blow and died in forty minutes. Application was made to the defendant company for the indemnity provided by the policy in case of the accidental death of the insured, to-wit, for the sum of six hundred dollars. The defendant company refused to pay the indemnity provided and this suit was brought to recover the same. The defendant company's refusal is based upon three grounds: First, that the assured is improperly classified in the policy as a travelling salesman, and that because of the following provision in the policy the beneficiary would only be entitled to receive such sum as the premium paid would have purchased in the more hazardous occupation in which the assured was engaged at the time of his death. The provision of the policy relied upon is as follows: "In the event of the death, injury or disability of the Insured, as herein provided, while engaged temporarily or otherwise, in any act, calling, occupation, risk or exposure classified as more hazardous than the classification herein given, this insurance shall not be forfeited nor voided, but Insured or beneficiary shall be entitled to recover that indemnity which premiums paid herefor would have purchased in the more hazardous class, as shown by the Company 's manual and classification of risks in force at the time of the accident or beginning of illness." Defendant asserts that assured should have been classified as an amateur football player, and that the premiums paid by him would have purchased a policy of insurance providing for an indemnity of fifty dollars in case of accidental death. Second, defendant claims that by reason of a provision in the policy that in the event of injury, fatal or non-fatal, from unnecessary exposure to apparent danger, the limit of the company's liability, shall be only one-fifth of the amount that would otherwise be payable under the policy, and that because of the fact that he would be entitled to only fifty dollars if properly classified; and engaging in a football game being an unnecessary exposure to apparent danger, the limit of the company's liability would be ten dollars, or onefifth of the amount which he would be entitled to receive under the classification to which defendant claims he belonged. Third, defendant claims that because of a provision in the policy that in the event of injury, fatal or otherwise, of which there shall be no visible marks on the exterior of the body, the limit of the company's liability would be one-fifth of the amount that would otherwise be payable, and that there were no visible marks upon the body of the insured. Therefore it contends that its liability is only one-fifth of the amount which he would have been entitled to receive had he been properly classified, to-wit, ten dollars. This sum of ten dollars it offered to pay, but the same was refused. The trial of the action in the Circuit Court resulted in a verdict and judgment in favor of the plaintiff for the full amount of the indemnity provided in the policy, to-wit, the sum of six hundred dollars, and this writ of error is prosecuted to reverse that judgment.

The first inquiry is, is the provision of the policy limiting the assured's recovery of an indemnity, the amount of which could be purchased by the premiums paid by him in the occupation in which he was engaged at the time of his death, applicable under the facts in this case, and does it prevent recovery for more than fifty dollars as contended by the defendant? The plaintiff insists that in as much as he correctly and truthfully informed the defendant company's agent as to the employments and occupations of his son, and the defendant company's agent made the classification upon this information, the defendant is now estopped to say that the assured was at the time of his death engaged in a more hazardous occupation than that mentioned in the policy. It may be considered as established in this case that the defendant company's agent was fully...