112 N.Y.S. 948 | N.Y. App. Div. | 1908
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:
“No person shall be admitted, as a beneficial member of this order who is engaged in any of the following occupations: Blasting, coal mining, submarine operations, manufacturing highly inflammable or explosive materials, nor who is an aeronaut or lineman in the employ of electric companies, either in the construction or repairing of lines over which the electric current passes, or who is engaged in any other occupation deemed extrahazardous by the supreme medical examiner, and no person shall be eligible for membership, in the order who is engaged either as principal, agent, or servant in the manufacture or sale of spirituous, malt, or vinous liquors as a beverage, and should any beneficial member of the order engage in any of the above-named; prohibited occupations after his admission, his benefit certificate shall become null and void from and after the date of his so engaging in such pro-*950 hibited occupation, and he shall stand suspended from all rights to participate in the benefit funds of the order.”
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 copartner, 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 business, except 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 bylaw. 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 page 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 attentively engaged; closely occupied, physically or mentally; opposed to idle; in constant or energetic action; filled with active duties or employment.”
So from these definitions a doubt or ambiguity arises as to the ' meaning with which the word was used in the by-law, and plaintiff’s contention at once assumes a phase of plausibility.
But there is a further reason which influences me in the construction of this by-law. The 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 “extrahazardous.” 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 pecuniarly interested in one of those dangerous employments, without taking an active or physical part therein. What the defendant evidently intended was to prohibit its members 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 word may itself imply activity, as distinguished from mere passiveness. The plain purpose of the defendant as expressed in the by
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 Insurance Company, 162 N. Y. 574, 57 N. E. 182; Kratzenstein v. Western Assurance Company, 116 N. Y. 59, 22 N. E. 221, 5 L. R. A. 799; Allen v. St. Louis Insurance Company, 85 N. Y. 473; Herrman v. Merchants’ Insurance Company, 81 N. Y. 184, 37 Am. Rep. 488.
It would have been very easy for the defendant, if it had intended the meaning for which it is now struggling, to have substituted the word “interested” for the word “engaged.” The distinction between the two words is apparent, and is pointed out in People v. Gregg, 59 Hun, 107, 13 N. Y. Supp. 114, where it was held that an indictment was defective which charged that the defendant did - “engage” in the manufacture and sale of spirituous liquors, in violation of a statute which prohibited him from being “interested” in such manufacture or sale; the court saying :
“The allegation of the indictment might be strictly true, and yet the defendant might in no way be interested in the manufacture or sale, within the language of the statute. He might be a common laborer in a brewery or distillery, or an engineer running a distillery, and thus engaged in the manufacture of distilled or fermented liquors, and yet in no way interested in its manufacture; and the same might be said of an agent employed by the month to sell, or a teamster employed under a salary for its delivery, and yet having no interest in the business.”
The judgment and order should be affirmed, with costs. All concur, except SMITH, P. J., who dissents.