257 F. 225 | 8th Cir. | 1919
This action was brought by the plaintiff, Mrs. Lester, against the Insurance Association, as defendant, to recover on an accident policy covering the life of her husband, Dr. Pliny P. Lester. The policy insured him “while he is engaged in the occupation of a physician and surgeon * * * in case of death effected directly and independently of any other contributing, concurring or intervening cause, by external violent and accidental means,” When the insurance was taken out, in January, 1913, and at the time of his death, Dr. Lester was engaged in the practice of his profession at Walsenburg, in the state of Colorado, which is one of the important towns in the district covered by the mining operations of the Colorado Fuel & Iron Company. He was also a member of the National Guard of Colorado, holding the rank of major, and assigned to the medical corps. During the fall of 1913, and the winter and spring of 1914, the employés of the Colorado Fuel & Iron Company were engaged in a strike, which for months assumed the form of belligerent opposition to the authorities of the state. The Governor called the National Guard into service to protect life and property in the district. Dr. Lester joined his company as a part of its medical corps. He was not otherwise connected with the military operations. He was equipped with no gun or sword; The only weapon upon his person was a pistol, which he carried in his pocket. He wore the insignia of the Red Cross, and his work was confined to caring for the sick and wounded. At times his service seems to have taken him away from his home town. Part of the time he was at Ludlow, but at the time of his death he was stationed at Walsenburg, and was engaged there in the practice of his profession, and at the same time performing such duties as were necessary in connection with the military force that was located in the city, numbering about 600 men. On the morning of April 29, 1914, he visited a number of his patients in Walsenburg, professionally. He then went with a small detachment, consisting of 30 men, to a point a few hundred yards from the city; the force having been sent out to reconnoitre and resist, if necessary, the activities of strikers who wex*e in the foothills or mountains near the town. The lieutenant of this force was wounded. Dr. Lester had just finished dressing his wound, and was down on his hands and knees in a railroad cut observing some men through his field glass, to decide whether they were strikers or soldiers. He was shot, and died almost instaxxtly.
The case was tried in the lower court before a jury, but at the conclusion of the evidence motions were made by both parties for a directed verdict. The jury was excused, pursuant to written stipulation, and the case submitted to the judge for decision. He found in favor of the plaintiff, and entered judgment for the full amount of the policy. The Insurance Association brings error to review that judgment.
In the trial court and here the case turns wholly upon two questions: (1) Was Dr. Lester at the time of his death “engaged in the occupation of a’physician and surgeon” ? (2) Was his death effected wholly by “accidental means”?
*227 “It is agreed and hereby stipulated by and between the parties to this action that the insured, Dr. P. P. Lester, was on the I71:h day of January, 1913 [the date of the policy!, a resident of Walsenburg, Oolo.; that at that time his only occupation was that of a physician and surgeon, and that his duties were fully described as those of ‘general practice’; that he continued in the general practice of medicine and surgery in and about Walsenburg, Oolo.; and that on the morning of April 29, 1914, he called professionally and rendered professional services to several of his patients in the vicinity of Walsenburg.
“It is further agreed and hereby stipulated that tho said Dr. P. P. Lester was on the lTEh day of January, 1913, a surgeon in the medical corps of the Colorado National Guard, and continued to be such until the time of his death, at which time he held the rank of major, and was performing the duties of a surgeon in the said medical corps of the Colorado National Guard; that at all the times above mentioned he was a member of the American Bed Gross Society.”
This, in our judgment, shows beyond reasonable controversy that Dr. Tester, at the time of his death, was engaged in the occupation of a physician and surgeon. This is the showing, not only of the stipulation, but of the evidence.
The language of Judge Hook, speaking for this court in Railway Mail Association v. Dent, 213 Fed. 981, 983, 130 C. C. A. 387, 389 (L. R. A. 1915A, 314), is equally appropriate here.
*228 “So many and varied are the causes of accidental injury that the particular language employed in instruments of insurance is of the greatest importance. A word added or omitted may alter materially the scope of the indemnity. Many cases like the one at bar lie close to the border line, perhaps, because not definitely in mind for inclusion or exclusion; but it is a delicate thing for a court to adopt the latter course, merely upon a supposition that they would have been excluded in terms, had they been thought of. The insurer most familiar with the subject chooses the words of his undertaking, and it is not unjust to take them in the sense conveyed to the ordinary reader, nor to hold against him in case of real substantial doubt.” '
In so far as vocation is a factor in determining the hazard, it is based upon the average of the whole class. It contemplates that each individual will in the course of his life necessarily'be exposed to varying degrees of hazard. It is likewise true that tire actuaries recognize that different individuals in the class will vary greatly in the extent of hazard to which they are exposed. A physician practicing his profession in tire congested districts of a large city, for example, will be exposed to many hazards to which a physician in a small, country town will not be subject. All of these matters, however, are embraced in the general average of hazards of the class of physicians and surgeons. If one individual at -one time is exposed to a largely increased hazard, as Dr. Tester was on the occasion of his death, others will be exposed to hazards falling greatly below the average. These are the factors upon which the insurance is based.
Men holding accident policies do not have to enter into nice calculations to determine whether they are stepping into a field of greatly increased hazard or not in following their vocations. They may go about their course of life, knowing that they are protected by their insurance, unless they enter a hazard which is expressly excepted from their policy.
“(1) Insane. (2) Not in the present full possession and normal exercise of all his faculties. (3) Engaging in any act in violation of any law or ordinance.-'
The fewness of exceptions in such policies is constantly urged as a ground for accepting the insurance by agents and solicitors. To1 add to the list of activities which should forfeit the insurance, after accident or death, would be a fraud upon the insured. The uniform holding of the courts has been along the lines which we have stated. The law is elementary, and we cite a few cases which illustrate and apply the rules: Gotfredson v. German Com. Acc. Co., 218 Fed. 582, 134 C. C. A. 310, L. R. A. 1915D, 312; Wildey Casualty Co. v. Sheppard, 61 Kan. 351, 59 Pac. 651, 47 L. R. A. 650; Union Mut. Acc. Ass’n v. Frohard, 134 Ill. 228, 25 N. E. 642, 10 L. R. A. 383, 23 Am. St. Rep. 664; Taylor v. Ill. Com. Men’s Ass’n, 84 Neb. 199, 122 N. W. 41, 24 L. R. A. (N. S.) 1174; Fox v. Masons’ Fraternal Acc. Ass’n, 96 Wis. 390, 71 N. W. 363; Hess v. Pref. Masonic Mut. Acc. Ass’n, 112 Mich. 196, 70 N. W. 460, 40 L. R. A. 444; Eggenberger v. Guar. Mut. Acc. Ass’n (C. C.) 41 Fed. 172.
Was Dr. Rester-’s death “accidental”? Whether it was intended by the person who fired the fatal shot is matter of conjecture. That, however, is not material. The word, as used in the policy, is a term of art. To answer the question we must consider the event from the point of view of Dr. Rester. Was it accidental as to him? Defendant says it was not, because he knowiugly and consciously exposed himself to the very hazard which caused his death, and must have contemplated such a result as a natural and probable consequence of the service in which he engaged. It is insisted that, to be accidental within the meaning of the policy, the result must have been “unforeseen and unexpected.” We do not regard this view as sound, either in law or upon principle. Persons protected by accident insurance may incur consciously hazards which may result in their injury or death without forfeiting the insurance, unless the policy expressly excepts the hazard. In the course of life men are constantly required to pass into environments of greatly increased hazard. They may do that kucnvingly, and, if injury or death results, it docs not forfeit their insurance, unless they do something which directly and immediately contributes to produce the act from which their death or injury results. For example, for several years past there have been districts in most of our large cities at certain seasons of the year in which there have been habitual assaults upon peaceful citizens by highwaymen. Men have been well aware of the risks of going upon the streets in such districts alone. They may have been so far conscious of the risks as to arm themselves for protection. And yet any peaceful' citizen, who has in the pursuit of business or pleasure incurred these hazards, is entitled to claim, if he is injured or killed by highwaymen, that as to himself the result is accidental.
The judgment of the trial court is clearly right, and it is affirmed.