128 A.D. 660 | N.Y. App. Div. | 1903
This is an action on two policies or certificates of insurance issued by the defendant on the life of plaintiff’s husband. The defendant is a fraternal beneficial society existing under the laws of Michigan. The insured died in June, 1905. The first certificate on- his life was issued in 1893 for $1,000. In 1896 this was increased to $3,000. In 1898 this was replaced by another certificate to other beneficiaries, and four days before the death of the insured another certificate for the like amount of $3,000 was issued, the apparent object being to change the beneficiaries. It is alleged in the complaint and conceded by the answer that this last certificate contained all the provisions of the former “ and it took the place of such said certificate.” Another certificate for $2,000 was issued in 1896. On these two outstanding certificates with interest plaintiff has recovered.
In 1895 defendant enacted a by-law as follows: “Mo person
The defense is that the insured violated this by-law by engaging in the saloon business. About six months before his death he with his son, as copartners, opened a saloon. The license was issued in their names jointly and there is no question about his pecuniary interest, in the business. It appears, however, that the deceased did not attend bar or perform manual labor in the saloon or take any part in the businessexcept to have his financial interest therein. His health began to fail before going into that business- and continued to fail until he died. He lived in the building over the saloon.
The question turns on the word “ engaged ” as used in the said by-law. Plaintiff claims that it means an active or physical management or connection with the liquor business, and not merely a pecuniary interest. In 15 Cyc. (at p. 1047) the word “ engage ” is defined as follows: “ To take a part; to devote attention-and effort; to employ one’s self; to enlist; to carry on ; to conduct.” Among the definitions of the word given by the Century Dictionary are the following: “ To occupy one’s self ; be busied ; take part; ” and the word “ busy ” is defined among other ways as follows: “ Actively or . attentivély engaged ; closely occupied physically or mentally; * ' * * opposed to idle; * . * in constant or energetic action; * * "" filled with active duties or employment.” So from these definí
But there is a further reason which influences me in the ,constvuction of this by-law. Tlie word “engaged” is used several times therein and in one sentence thereof. It will not be questioned that it should receive the same interpretation wherever in that sentence it occurs. In the first part of the sentence it is used in connection with dangerous and perilous occupations or such .as are characterized in the by-law itself as being “ extra hazardous.” It was plainly the design of the by-law to guard the defendant against the risk of hazardous or dangerous vocations and there is certainly'no reason why the prohibition should'apply to one who was merely a financial backer or pecuniarily interested in one of those dangerous employments without taking an active or physical part therein. What the defendant evidently intended was to prohibit its membei’S from taking risks or hazards which might tend to increase its liability. It is quite true that there is a moral question involved in the liquor business but we cannot consistently change the meaning of the:-word “engaged” used as it is indiscriminately in the by-law in reference to all the prohibited occupations unless required to do so by the context. They are all grouped together and characterized in the by-law by the word “ occupations,” which woi'd- may itself imply activity as distinguished from mere passiveness. The plain purpose of the defendant in this by-law was not to protect its members-against moral risks of engaging in unworthy or questionable vocations but to protect itself against the pecuniary risk of having its members engage in occupations dangerous to their health or lives and evidently the liquor business was deemed to be fraught with a dangerous tendency or possibility to the healtli of those who might actively engage therein.
In my opinion the word “ engaged ” as used in this by-law is susceptible of two interpretations and if that is so the rule applies that it should receive the interpretation most favorable to the plaintiff because the defendant is responsible for the language used. (Janneck v. Metropolitan Life Ins. Co., 162 N. Y. 574; Kratzenstein, v. Western Assurance Co., 116 id. 59; Allen v. St. Louis Ins. Co., 85 id. 473 ; Herrman v. Merchants' Ins. Co., 81 id. 184.)
The judgment and order should be affirmed, with costs. .
All concurred, except Smith, P. J., dissenting.
Judgment and order affirmed, with costs.