87 A.D. 41 | N.Y. App. Div. | 1903
The action is brought to recover the indemnity stipulated in a policy of accident insurance, issued by the defendant to the plaintiff. At the close of the plaintiff’s evidence the learned trial court granted the defendant’s motion to dismiss the complaint, which motion was made “ upon the ground that the plaintiff has shown by his own testimony that he violated the terms of the policy at the time of the injury.”
The plaintiff’s occupation is that of bartender. On the occasion of his receiving the injury of which he complains he had opened the door of the bar room where he is employed, and ordered an individual to leave the place because of some disturbance he was creating in the course of a noisy quarrel with some other person or persons. This individual grappled the plaintiff, causing him tó fall, and thereby the injury was inflicted. The plaintiff testified : “ I asked him not to use such abusive language to these other two peo
The only terms of the policy which the plaintiff can possibly be deemed to have violated are those which provide that the insurance does not cover injuries “resulting, directly or indirectly, wholly or in part,” from “ fighting, wrestling, scuffling, altercation, feud, quarrel or assault,” or from “ voluntary or unnecessary exposure to danger.” ■ I do not think the dismissal of the complaint can be sustained,- The plaintiff was insured as a bartender, and while his version of the occurrence occasioning the injury is not consistent in every detail, a jury might have concluded from the evidence that he was not injured while actually engaged in an ..attempt to forcibly eject the person who assaulted him; that he was lawfully entitled to insist that such person should leave the place because of his offensive and violent behavior; that he had no reason to apprehend bodily harm as a consequence of ordering such person out of the
' In Insurance Company v. Bennett (90 Tenn. 256) it was held that a provision in an accident policy that “ if death occurs from assault provoked by quarreling no recovery can be had,” must have a reasonable construction, and that the death of the insured cannot
In Robinson v. U. S. Mutual Acc. Assn. (68 Fed. Rep. 825) it was held that where the insured, who was unarmed, was shot while engaging in an altercation, his death was accidental within the meaning of the policy, and was not within the exception against death from dueling or fighting. The court said (p. 827): “ The meaning of the word as employed in the contract must have reference to such disasters as are brought about through the culpable intention or designing of the assured. In one sense —r that of scholastic philosophy — nothing is accidental, but we cannot employ such refinements in the interpretations of contracts of indemnity against casualties. Nor do I find that the assured was engaged in fighting or violating the law in that sense which would invalidate the policy.”
In Supreme Council of the Order of Chosen Friends v. Garrigus (104 Ind. 133) it was claimed that the insured was shot while engaged in an “ affray,” contrary to the provisions of the policy. The court said (p. 140): “ The charge that appellee was engaged in an affray is, moreover, the statement of a conclusion. * * * If the. facts were stated instead of the conclusion, * * * it might appear that the only part appellee took was in defence of his person against the assaults of his adversary or adversaries, and that thus, whatever injuries he received were received without any fault or wrong on his part.”
United States Mutual Accident Assn. v. Millard (43 Ill. App. 148) may be distinguished. There the insured, although not the assaulting party, did engage in a fight, and it was held that the injuries he received were excluded from the operation of the policy as having been caused by fighting. There was no question presented of the effect of the discharge of a duty incident to employment, which was resented by violence and assault. So in Gresham v. Equitable Ins. Co. (87 Ga. 497) the insured and his antagonist willingly engaged in a personal encounter, in which the insured was killed, and the insurer was held not liable. " The language of Bleckley, Ch. J. (at p. 499), is quite pertinent, viz.: “ A faultless and
The learned counsel for the respondent cites no case in this State in support of the. ruling of the learned trial court in dismissing the-, complaint, and I cannot find that the question has ever been decided, here. In Lehman v. Great Eastern Casualty Co. (7 App. Div. 424) it was held that a provision against “ voluntary exposure to 'unnecessary danger ” in an accident policy refers only to an act; done in obedience to, and, regulated by, the will of the person who-does it; that the act must be done designedly and not accidentally,, and that, consequently, one cannot be said to be guilty of a volun- . tary exposure to . danger unless he intentionally and consciously assumes the risk of an obvious danger. To the same effect is. Thomas v. Masons’ Fraternal Acc. Assn. (64 App. Div. 22). The reasoning of these cases may be deemed applicable to the question of scuffling or fighting, as may also the cases of Keeffe v. Nat. Accident Society (4 App. Div. 392); Bradley v. Mutual Benefit Life Ins. Co. (45 N. Y. 422), and Barrow v. Family Fund Society (116 id. 537); but none is in direct point on that branch of the case.
There is a ■variance between the allegations of the complaint and the plaintiff’s proof, which if pointed out at the trial, might have been obviated by amendment. The dismissal cannot, therefore, be upheld on that ground, but its propriety must be determined upon the accuracy of the ruling on the questions actually decided.
The judgment should be reversed and a new trial ordered.
Goodrich, P. J., Bartlett, Woodward and Jenks, JJ., concurred..
Judgment of the County Court of Orange county reversed and new trial ordered, costs to abide the event.