157 Ark. 342 | Ark. | 1923
Appellee instituted suit against appellant in the Third Division of the Pulaski Circuit Court, upon a personal accident policy, to recover $500 for the accidental loss of an eye. The issue joined by the pleadings was whether appellee was entitled to $500 or $150. This was dependent on whether appellee’s change in occupation from an “ice checker, not handling” to that,of a “laborer in foundry, not handling hot metal,” changed his classification from “C” to “XD” within the meaning’ of the standard pro rata clause contained in the policy, which clause is as follows:
“This policy includes the indorsements and attached papers, if any, and’ contains the entire contract of insurance except as it may be modified by the company’s classification of risks and premium rates in the event that the insured is injured or contracts sickness after having changed his occupation to one classified by the company as more hazardous than that stated in the policy, or while he is doing an act or thing pertaining to any occupation so classified, except ordinary duties about his residence or while engaged in recreations, in which event the company will pay only such portion of the indemnities provided in the • policy as the premium paid would have purchased at the rate but within the limits so fixed by the company for such more hazardous occupation. ’ ’
The cause proceeded to a hearing upon the pleadings and evidence, at the conclusion of which appellant requested the court to instruct the jury to return a verdict for $150 which it had tendered into court. The court refused to give the instruction over the objection and exception of appellant, and, over the objection and exception of appellant, sent the case to the jury to ascertain whether employment at the foundry was. more hazardous than at the ice company, and, if not, to return a verdict for appellee. The court, over the objection and exception of appellant, had, during the course of the trial, admitted evidence tending to show that the employment at the foundry was less dangerous than that at the ice company.
The jury returned a verdict in favor of appellee for $500, and a judgment was rendered in accordance therewith, from which is this appeal.
Appellant’s insistence for reversal is that the court erred in not construing the contract, under the undisputed evidence, to mean that the classification of appellee had been changed from ‘ ‘ C ” to ‘ ‘ XD ’ ’ by changing his occupation to one classified by the insurer as more hazardous than the one stated in the policy. The undisputed facts show that appellee stated, in his application, which was copied into and made a part of the policy, that he was employed by the ice company in the capacity of “ice checker, not handling;” also that the rate and classification manual, which became a part of the policy by express terms therein, shows that a laborer in a foundry, not handling hot metal, was rated and classified as class “XD;” also that appellee changed his occupation from that specified and classified in the policy as class “C” to that of a laborer in a foundry, not handling hot metal; also that appellant classified the occupation to which appellee changed as more hazardous than his occupation with the ice company.
The contract entered into between appellee and appellant provided that appellant might determine the relative danger between occupations. This being true, and appellee having changed his occupation from one specified and classified in the policy to one classified by appellant as more hazardous than the one stated in the policy; the pro-rate clause in the policy is applicable, and appellee was only entitled to recover the benefits which would have been provided in his policy if he had paid the same amount of premium and had been engaged in the occupation of laborer in foundry, not handling hot metal. Under the undisputed facts and terms of the policy appellee’s claim must be pro-rated from class “C” to class “XD,” entitling him to a recovery of $150. The trial court should have instructed a verdict for that amount.
On account of the error indicated the judgment is reversed, and judgment is directed to be entered here in accordance with the tender heretofore made.