Trow v. Preferred Accident Ins. Co.

• Decision Date: 05 October 1907
• Citation: 67 A. 821,80 Vt. 321
• Parties: TROW v. PREFERRED ACCIDENT INS. CO.
• Court: Vermont Supreme Court

67 A. 821

80 Vt. 321

TROW

v. PREFERRED ACCIDENT INS. CO.

Supreme Court of Vermont. Washington.

Oct. 5, 1907.

Exception from Washington County Court; Wendall P. Stafford, Judge.

Assumpsit on accident insurance policy by John Trow, administrator of Joseph H. Ward, against the Preferred Accident Insurance Company. There was a judgment for plaintiff, and defendant excepts. Affirmed.

Argued before ROWELL, C. J., and TYLER, MUNSON, WATSON, HASELTON, and POWERS, JJ.

John W. Gordon and S. Hollister Jackson, for plaintiff. Zed S. Stanton and Geo. W. Wing, for defendant.

HASELTON, J. This was an action of assumpsit on an accident insurance policy. The declaration set out the policy with the conditions on the back thereof. The defendant pleaded the general issue and four special pleas, to which the plaintiff replied. Trial by jury was had. A verdict for the plaintiff was returned, and judgment was rendered thereon.

The insurance company by a policy, which the plaintiff made an exhibit, insured the plaintiff's intestate as "contractor, office and travelling," according to the written words of the policy. One S. S. Ballard, the general agent of the company for the county of Washington, took the application of Ward and forwarded it to the company, and the insurance was' effected through said Ballard. Mr. Ballard was called as a witness by the plaintiff, and, after he had testified as to the character and extent of his agency, he was permitted to testify, in substance, that in taking the application and effecting the insurance he knew Ward to be, and for a long time to have been, a railroad contractor engaged in building railroads and railroad bridges and abutments as well as a contractor in respect to other matters. This evidence as to the knowledge of the agent was, under the final ruling of the court in reference thereto, used, under objection and exception by the company, as tending to show the application of the words of the policy designating Ward's occupation. The evidence of the agent's knowledge of Ward's previous occupation bore, of course, only upon his knowledge of Ward's occupation at the time. The final ruling of the court was correct. Ballard's knowledge in the insurance transaction is taken to have been the knowledge of the company; he being its general agent throughout the district within which the insurance was effected (Carrigan v. Insurance Co., 53 Vt. 418, 38 Am. Rep. 687; Fraser v. Insurance Co., 71 Vt. 482, 45 Atl. 1046), and the company's knowledge that Ward was a railroad contractor acting in that occupation tended to show the sense in which the brief and elliptical phrase "contractor, office and travelling" was used in the policy issued by the company. The company's knowledge was one of the circumstances material to an interpretation and construction of the words that it used. Oral evidence with reference thereto did not vary the terms of the written contract and violated no rules of evidence. In the construction of contracts, the circumstances in which the parties contract may be looked at, and their common knowledge and understanding is sometimes, and is here, such a circumstance. Rioux v. Ryegate Brick Co., 72 Vt. 148, 47 Atl. 406; Granite Works v. Bailey, 69 Vt. 257, 37 Atl. 1043; McGowan v. Griffin, 69 Vt. 168, 37 Atl. 298; Hart v. Hammett, 18 Vt. 127.

The agent Ballard was called as a witness by the plaintiff. On his cross-examination he was shown what the examining counsel denominated, and what in fact was, "a remnant of a paper," and the evidence of the witness tended to show that it was a part of the application for the insurance in question. The remnant had a burnt appearance. Before the close of the case, during an argument on a motion for a verdict in favor of the defendant, made at the close of the plaintiff's evidence, this piece of paper was by the defendant offered in evidence in connection with Ballard's testimony, and was excluded; the court ruling that in the form in which it was it was inadmissible without further evidence. This ruling was correct. Both the written and the printed matter on this paper were incomplete, and there was no evidence tending to explain its burnt and fragmentary condition as it came from the defendant's possession. The fragment showed the following words and parts of words "Contractor, not working, buil" and "office work & travell." The claim of the company was that, if this paper had been received, "bull" would have signified "building," and "travell" would have denoted "travelling," and that the applicant's written statement of his occupation would have been shown to be contractor, not working, building, and that his duties in that occupation were "office work and travelling." If we assume this to be so, the defendant would have gained nothing by the admission of the fragmentary application. The application and policy, construed in the light of the knowledge imputed to the company would have shown that the company insured Ward as a contractor and builder not doing the actual work of building, but engaged in his office and in traveling about the duties of such a contractor and builder. With or without the restored application in the case, the "travelling" referred to as one of the duties of Ward's occupation was travel by the modes and conveyances ordinarily incident to the occupation of a contractor and builder not himself participating in the actual work of building or construction.

The policy by its terms did not cover injury or death "while or in consequence of riding in or on any locomotive," or with an exception immaterial here, "while walking or being on the roadbed of any steam railway." The policy further provided that, if the insured should be injured fatally or otherwise in any occupation or exposure more hazardous than that stated in the policy, the company should be liable only for the amount fixed for such increased hazard in accordance with the company's classification of risks. The declaration alleged, among other things, that Ward was killed solely by accidental means, by falling from an observation car. At the close of the evidence, the defendant moved to have a verdict directed in its favor because the plaintiff had failed to make out a case under the allegation just referred to, and, in substance, because of the foregoing provisions of the policy when applied to the evidence. The claim that the plaintiff had failed to make out a case under his allegation is treated as equivalent to a claim that there was no evidence on which the plaintiff could go to the jury in support of the allegation. The motion was overruled, and the defendant excepted.

The evidence tended to show that on the day of his death Ward was riding over the Rutland railroad, in the Nehasane, an observation car as it may be called, though witnesses differed as to its proper designation. An examination of the whole testimony discloses that there was evidence fairly tending to show that at the precise time in question Ward was traveling in said conveyance in pursuance of the occupation in which he was insured, and by the method of travel usual in that occupation and incident thereto. No one, so far as the evidence disclosed, saw Ward fall, or saw him run over; but evidence tending to show the manner of his death is correctly summarized in the bill of exceptions, and the summary there given cannot well be abbreviated. We accordingly quote therefrom the following statement of the tendency of evidence on the part of the plaintiff: "That the observation car stopped for the purpose of permitting inspection of bridge No. 78 on said railroad, about six or eight feet before the bridge was reached from the front of said car, which was traveling in an easterly direction. That there were riding with Mr. Ward in said car the bridge constructor, Badger, and the superintendent of the road, Parker. That Parker and Badger left the car to go under the bridge, and when Mr. Ward was last seen alive he was sitting in the observation car. That there were on the car a regular crew, in addition to the persons mentioned, consisting of conductor, brakeman, fireman, and engineer, and said car and engine constituted a train for the conveyance of people engaged as contractors and as officials of the road. That the said Badger and Parker proceeded under the bridge, and that Badger came out from under the bridge and motioned to the fireman to run the engine across the bridge, in order that observation might be made as to the effect on the bridge of the passage of the car over it. That before this signal to go forward was given, the engineer went on the ground to the front part of his engine to oil the same, and Mr....