128 A. 93 | Pa. | 1925
Argued January 19, 1925. On October 18, 1922, Charles A. Norlund was killed at a railroad crossing near his home in Lycoming County, and this suit by his widow was on a five thousand dollar accident insurance policy held by him in the defendant company, wherein she was the beneficiary. Plaintiff recovered a verdict and judgment for the full amount and defendant has appealed.
In the policy Norlund's occupation was stated as "Manufacturer of hardware specialties, secretary and salesmanager, office duties and traveling only." The policy provides, inter alia, as follows: "This policy includes the endorsements 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 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 any act or thing pertaining to any occupation so classified, except ordinary duties about his residence or while engaged in recreation, in which event the company will pay only such portion of the indemnities provided in the policy *391 as the premium paid would have purchased at the rate but within the limits so fixed by the company for such more hazardous occupation."
Norlund lived next door to his father and kept his motorcycle, lawn mower, garden tools, etc., in the latter's garage. The afternoon of the accident, being observed as a half holiday, Norlund was assisting two men in the work of enlarging the garage, and, in connection therewith, it became necessary to procure about a ton of sand. For that purpose he took a Ford touring car which had been converted into a small truck, by replacing the rear seat with a box, and, accompanied by his father, drove about one-half of a mile, got the sand and, while returning therewith was killed at a railroad crossing.
Defendant had a duly established classification of risks and avers Norlund was rated under Class 1; and, while admitting he had not changed his occupation, contends that when killed he was doing an act pertaining to the occupation of "truckman" rated in Class 4, and that thereunder, according to its schedule of rates and benefits, the beneficiary was entitled to only $1,875, and that judgment should be entered accordingly. This contention is untenable for several reasons. An insurance contract must be construed favorably to the insured and all doubts resolved in his favor. See Teutonia Ins. Co. v. Mund, to use of Biddle,
Aside from the conclusion just stated, it is doubtful whether the word "truckman" in the schedule should be construed as the driver of an autotruck, treating the Ford car in question as such; for the Standard Dictionary, the Century Dictionary and Webster's Dictionary all define truckman as: "(1) One who does business in the way of barter; (2) One who drives a truck, or whose business it is to convey goods on trucks." Moreover, the above-quoted provision of the policy requires payment of the full amount where the insured is accidentally killed while doing ordinary duties about his residence. The question of the application of this provision, under the facts developed at the trial, was properly submitted to the jury. The insured's occupation was as stated in the policy, but he employed much of his spare time caring for a large garden and lawn; he also did some work in and about his father's garage and was so engaged on the day in question. His work there might properly be treated as ordinary duties about his residence, and had he been killed while crossing the street for some purpose connected therewith, it could not be declared as matter of law that the accident happened outside the scope of such duties, neither can it because the accident happened while crossing a railroad for a like purpose.
Upon the facts, there is nothing to take this case out of the general rule that the question of whether the insured had changed his occupation, or at the time of *393
injury was doing an act pertaining to one more hazardous, was for the jury to decide. "The question whether the insured has changed his occupation within he provision of the policy is properly left to the jury under instructions,": I Am. Eng. Enc. of Law (2d ed.) p. 303. "Issues arising out of the evidence as to whether the insured, at the time he was injured, had changed his occupation or was engaged in an act pertaining to an occupation more hazardous than that for which he was insured, are for the jury to determine under proper instructions": Crawford v. Travelers' Ins. Co.,
The judgment is affirmed.