Stephen Furry's Admr. v. General Accident Insurance Co
| Citation | 68 A. 655,80 Vt. 526 |
| Parties | STEPHEN FURRY'S ADMR. v. GENERAL ACCIDENT INSURANCE CO |
| Decision Date | 30 January 1908 |
| Court | United States State Supreme Court of Vermont |
January Term, 1908.
GENERAL ASSUMPSIT on an accident insurance policy. Plea, the general issue. Trial by court at the September Term, 1907 Rutland County, Hall, J., presiding. Judgment for the plaintiff to recover the larger sum mentioned in the policy. The defendant excepted. The opinion states the case.
Judgment reversed, and judgment for the plaintiff for the smaller sum.
E H. O'Brien and Charles L. Howe for the plaintiff.
Present: ROWELL, C. J., TYLER, MUNSON, and WATSON, JJ.
Plaintiff's intestate was insured in the defendant company under a contract which limited the company's liability to one-fifth of the amount otherwise payable, if the loss was "from exposure to obvious risk of injury or obvious danger," or "while under the influence of any intoxicant or narcotic." It is found that "the accident did not occur from exposure to obvious risk of injury or obvious danger." This is conclusive as to the first exception, unless it can be said as matter of law that walking on a railroad track unnecessarily is in itself such an exposure,--as to which we do not find it necessary to inquire. The findings bearing upon the second exception are with reference to some intoxicant or narcotic, without determining which. For brevity, we shall speak of the case as one of intoxication.
It is found that during the evening preceding his injury the insured was more or less under the influence of some intoxicant or narcotic. Between eleven and twelve o'clock he went to a hall where a fair was being held, and his condition was then such as to justify the managers in preventing his entrance. He was last seen in the village between twelve and one o'clock, and his actions and conversation at that time indicated that he was "getting sobered off. " Soon after this he went to the railroad yard, lighted his lantern and started south on the track. Several persons saw him as he started, and watched him for some distance. His gait was somewhat unsteady, but he was walking between the rails. It was about a mile and a half to the place where he was injured, and in this distance there were two bridges without any planking on the ties. He was found early in the morning, sitting a few feet west of the track. His left foot had been cut off just above the ankle and was lying inside the rail. The trains passed Danby that night at 12:49 and 1:32.
The concluding finding is that at the time the accident occurred the insured was not under the influence of intoxicating liquor "so as to prevent him from being fairly able to take care of himself." This leaves him under the influence of liquor to some extent, and measures the extent of the influence by the advance made in the recovery of his faculties. It is saying in effect that the influence of the liquor had so far passed away that he had become fairly able to take care of himself. The effect of the finding must depend upon the force given to the word "fairly." It is evident that the word is not used here in the sense of "fully," but rather in the sense of "measurably" or "reasonably." See Century Dict. The clause containing it certainly cannot be construed as a finding that the insured had regained the normal use of his faculties. The word, although capable of other uses, is ordinarily used as a word of limitation. In Warner v. Arctic Ice Co., 74 Me. 475, there was a question regarding the phrase "fairly merchantable quality," and the Court considered...
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