Edmonds v. Mutual Lire Insurance

144 N.W. 718 | S.D. | 1913

McCOY, J.

From the plaintiff’s complaint it appears- that on the 21 st day of November, 1910, there was issued and 'delivered to Clarence P. Edmonds, as the insured, a life insurance policy, the plaintiff and respondent being therein named' as beneficiary; that the application preceding said ‘ policy contained a clause which, among other ¡things, contained the following: “During the period of one year following the date of the issue of the policy of insurance for which application is hereby made, I will not engage in any of the following extra hazardous occupations or employments; retailing intoxicating liquors, handling electric wirec or dynamos,” etc. — naming a number of other occupations- as being extra hazardous. The -policy also contained the following as a portion of one of it© provisions: “This policy is free from any restriction after one year from, its date of issue, as set forth in the provisions of tire application attached hereto.” On the 24th day of October, 1911, -said insured entered toe employ of the General Electric Company, and on November'15th became engaged in the occupation of handling .electric wires and dynamos, and so continuously continued to be engaged until the 22nd day of Eebruaiw, T912, when he was killed by an • electric shock while being so 'engaged. Ffom -an order overruling a demurrer to said complaint, defendant appeals.

It is toe contention ¡of appellant that as ¡soon as the insured violated the terms of the policy and toe ¡application by engaging in toe forbidden occupation within one year of toe date of insurauce, such policy, by reason thereof, became forever after-wards void and of no effect Whatsoever; while on the other hand, the contention of respondent is that during the time within the year, after the issuance of the policy, that insured engaged in the forbidden extra hazardous occupation .the right to recover on sudh policy was suspended, but when the death of, the insured occurred' at a time when there was no restriction, by the terms of the policy, ais to such occupation which caused his death, then recovery wa's proper.

We are inclined to the view that tire contention of respondent is the right one, and that the demurrer was properly overruled. If the de'ath of insured had occurred prior to November 21, 1911, by reason of and while he was engaged- -in the prohibited occupation then there i© but little question, but what :a recovery on this policy Would have been improper; but after the 21st -day of November. 1911, he was not prohibited1 or restricted' by the terns of the contract from engaging in the occupation of handling electric wires or dynamos. From the 22nd -day of November, 1911, until the time of his dejath, a period of .three month®, the insured was ,sO employed and engaged, not in violation of the contract, but by implied permission thereof. There 'is absolutely nothing in the circumstances of this case that would, to the least degree, indicate that the death of -the insured' was in any manner whatsoever due to or connected with the one month’s ■ employment in violation of the contract:

We have been unable to find any reported case involving a like provision- in policy or application. The usual application and policy restrict and1 prohibit the extra hazardous occupation throughout the entire existence of the policy. A somewhat analogous 'situation arises under fire insurance policies, where the policy is conditional that the insured -property shall not be suffered to become vacant, or that extra inflammable material® shall not be stored therein, or that the -insured property -shall not become mortgaged or insumbered, and like provisions, -during the existence of the policy. All tiiese conditions 'including the one -involved in the case ait bar, -relate to the question of extra hazardous increased risk or peril. It seem® to be held by many courts that, when the extra hazardous condition occurs temporarily during the existence of the policy, 'but ha® -ceased to exist at -the time of 'loss, and where there is nio' connection] between, the cause of a loss and- the prior existing- forbidden extra 'hazard, the policy is voidable and suspended during the continuation of the forbidden extra, hazard, but that, when, the temporary extra hazard ceases-, the policy revives, and is again in full force and effect, and that a recovery may be had- thereon for loss occurring after -the removal of -tire forbidden extra hazard. In the case at bar inhibition against extra hazardous employment, by the .term's of the -contract, was for a temporary period only. Sumpter Tob. Warehouse Co. v. Phoenix Ins. Co., 76 S. C. 76, 56 S. E. 654, 10 L. R. A. (N. S.) 736, 121 Am. St. Rep. 941, 11 Ann. Cas. 780, and note; Cooley’s Briefs on Ins. §§1883-1885. In the case of Union Life Ins. Co. v. Hughes’ Adm’r, 110 Ky. 26, 60 S. W. 850, where a .policy was conditional against the excesisive, use and engaging in the business o-f selling intoxicating liquors, and where- the insured had- both used intoxicants and engaged in such business- in violation of the policy, but had ceased to' do so at the time of death, .and death hot being due to. such violation of .the term’s of the contract, .it was held that the right to- recover -on the policy was not forfeited.

- Finding no error in the record, .the order appealed from is affirmed