34 N.J.L. 371 | N.J. | 1871
The opinion of the court was delivered by
This is a suit on a contract of insurance against “bodily injuries effected through violent and accidental means.” One of the conditions of the policy is in these words, viz., “ The party insured is required to use all due diligence for personal safety and protection, and to give immediate notice to the company in the event of changing occupation, profession, or employment to a more hazardous exposure, under the company’s classifications, than is named in the application for this policy, and to pay such additional premium as may be required to cover such extra hazard; and failure thereof shall render this policy void.”
On the argument, two exceptions to the proceedings at the trial were taken, grounded on this stipulation.
First. It was insisted that the assured did not use due diligence for his personal safety and protection.
The circumstances were these: the assured was haying a small barn put up, and while the same was building, had gone up to the second story to look on at the work. Stepping to one side he trod upon a joist which, from a concealed defect, broke, and he was killed by falling to the ground. At the time of the accident he was heavily clad in two overcoats, and was said to be an awkward man. These facts do not show any disregard to his personal safely, on the part of the assured. There was no rashness or undue exposure in placing himself in the position described, and the breaking of the timber, which was the proximate cause of the death, was a pure accident. Besides, this was altogether a question for the jury, and they were instructed in the language of the charge to “ take all the circumstances into con
The second objection, arising out of the clause of the policy above recited, was, that there was error in the charge of the judge touching that provision which prohibited a change of occupation on the part of the assured, without notice. In this policy the deceased was described as a teacher, and it was insisted that he had given up that occupation and had become a builder, which was, according to the specifications of the policy, a business attended with greater hazard. That Mr. Stone had been a teacher by profession was not denied, and the entire proof of his change of occupation since he had been insured consisted in the fact that he had caused, apparently for his own use. two dwelling-houses to be erected. There seems to be no substance whatever in this' objection. The court would have been fully warranted in saying that there was no evidence whatever from which the assumption by the assured of any new business could be inferred. But the point was left to the jury, with the explanation that the expression “ changing occupation,” &c., meant an engaging in another employment as a usual business. It seems to require no argument to show that this exposition was correct. It is simply the clear, literal meaning oí the terms, which can, in this connection, have no other signification. Mr. Stone was a teacher out of employment, and it seems preposterous to affirm that because he had one or two houses built by contract, that he thereby became a builder by profession. Persons of wealth often invest their money in buildings, but it would be a palpable error to classify them, with suspect to occupation, among builders. The instructions of die judge and the findings of the jury on this head were clearly correct.
There was a third ground of defence, which is dependent
By force of this provision the counsel for the defendants insists that even if it be true that if the assured did not change his occupation within the meaning of the policy, still, if he lost his life in doing an act which was not incident to his occupation of’ teacher, but was incident to that of builder^ the plaintiffs were not entitled to recover. This was the view adopted at the trial, and the case, subject to this interpretation, was submitted to the jury. The charge presents this question in these words : “ In this connection the proper ' construction is, to exempt the company from liability for injuries received in doing any act which falls peculiarly within the ordinary duties of the forbidden occupation. To illustrate : an attorney at law taking charge of a steam engine on a single occasion would not thereby so change his occupation, profession, or employment as to entirely avoid his policy, but he could not hold the company on the policy for any injuries he sustained in doing that single act.” This interpretation is the one most favorable to the defendants that can, by any possibility, be put upon the clause in question, and the jury, being thus instructed, found, as they were fully justified in doing, that the act of the assured which led to his death was not an act that was more appropriately incident to other occupations than it was to that of a teacher. This finding was based on the common sense idea that a teacher who has a house in the course of erection may visit such house as a spectator, without doing anything which is-aside from the ordinary line of Ms life. The consequence is,, that under any practicable construction of this contract the verdict cannot be disturbed. My only scruple is, whether this instruction did not incline too much to the side of the defence. After a careful examination of this clause it does
But there is still another, and, as it seems to me, a decisive objection against the admission of this endorsement as constituting in itself a substantive agreement. That objection is this: that considered in this light it cannot be received as any part of the contract between these parties. As I have stated, this clause is a prefix to the classification on the back of the policy, and such prefix is not referred to in the body of the instrument. The policy itself is very explicit as to what shall be comprised in the contract. Its language is, that this policy “is issued and accepted subject to all the provisions, conditions, limitations, and exceptions herein contained or referred to, and upon the express agreement that the statements and declarations of the insured in his application for this insurance are warranted to be true in all
The rule to show cause should be discharged.
Cited in Hoagland v. Segur, 9 Vr. 238.