The Wildey Casualty Company v. Sheppard

• Decision Date: 06 January 1900
• Docket Number: 11,405
• Citation: 59 P. 651,61 Kan. 351
• Parties: THE WILDEY CASUALTY COMPANY v. DAVID A. SHEPPARD
• Court: Kansas Supreme Court

59 P. 651

61 Kan. 351

THE WILDEY CASUALTY COMPANY v. DAVID A. SHEPPARD

No. 11,405

Supreme Court of Kansas

January 6, 1900

Decided January, 1900.

Error from Sedgwick district court; D. M. DALE, judge.

Judgment affirmed.

Bentley & Hatfield, for plaintiff in error.

Stanley Vermilion & Evans, for defendant in error.

OPINION

JOHNSTON, J.:

This was an action by David A. Sheppard to recover from the Wildey Casualty Company upon a contract of insurance which, among other things, provided that the company would pay Sheppard weekly indemnity in case of a disabling accident, and would also pay him $ 2500 for the loss of a hand above the wrist as the result of an accident during the life of the policy. His left hand was torn off by the accidental discharge of a gun on May 27, 1897, while he was hunting rabbits in his orchard, and the company having refused payment of his claim, the present proceeding was begun. The trial resulted in a verdict in favor of Sheppard for $ 2618.75.

The company complains, and states that Sheppard misstated his business, failed to comply with the conditions of the insurance contract with respect to the giving of notice and furnishing proof of the injury, and that he voluntarily exposed himself to unnecessary danger, but counsel do not satisfactorily point us to any particular part of the record where error may be seen, nor do they sufficiently indicate particular rulings as a basis for the assigned errors.

In respect to the claim that the insured misstated his business, it may be said, first, that no such averment was contained in the answer of the company, but it did allege that he was engaged in a business -- hunting rabbits -- more hazardous than that in which he was insured, and that in no event was he entitled to more than $ 375. Sheppard was insured as a barber and restaurant keeper, and it is contended that he was injured while following the occupation of a hunter, which is classed as more hazardous than the occupation in which he was insured. He was not engaged in hunting for hire or profit, but it was an individual act, only an incident to his daily life, and is not to be regarded as an occupation nor as furnishing a basis of classification. In Holiday v. American Mut. Acci. Asso., 103 Iowa 178, 72 N.W. 448, one insured as a bookkeeper against accident by a policy classing as more hazardous the occupation of hunting, and providing that, if injury occurred while performing an act pertaining to another occupation classed as more hazardous than the one under which the policy was issued, or while engaged in a more hazardous occupation, the insured should be entitled to only such indemnity as the premiums paid would purchase in the class in which such occupation was classed, was shot by the discharge of a gun while he was hunting for recreation, and it was held that within the meaning of the policy he was not engaged in the occupation of hunting when the injury occurred, so that the liability of the defendant could be lessened for that cause. In Union Mutual Accident Ass. v. Frohard, 134 Ill. 228, 25 N.E. 642, 10 L. R. A. 383, which involved a like question, it was said:

"The word 'occupati...