246 N.W. 14 | Minn. | 1932
Defendant issued an accident policy to Charles F. Pankonin, who was later kicked by a horse, resulting in his death. Plaintiff is the surviving widow of the insured and is the sole beneficiary named in the policy, part of which reads as follows:
"PART III. AUTOMOBILE AND SPECIFIED FARM MACHINERY ACCIDENTS.
"(a) For loss of life, both hands or both feet, sight of both eyes or one hand and one foot, sight of one eye and one hand or sight of one eye and one foot, sustained by the wrecking or disablement of any horse drawn or motor driven car or motorcycle in which the Insured is riding or driving or by being accidentally thrown therefrom, including accidents causing Death or disability sustained under the conditions specified in this Part while using or operating farm wagons, mowers, binders, plows and other farm machinery which is motor driven or horse drawn, the Company will pay the sum of $1,000.00."
The insured plowed with an ordinary walking plow pulled by two horses. He stopped plowing at noon for lunch. He drove the team with the plow near the center of the field to within about ten feet of an old building and tent, where he and his wife were temporarily living. Lie there unhitched, removed the bridles, and tied the horses alongside the building about ten feet from where he left the plow and there fed the horses. After lunch the insured and plaintiff put the bridles on the horses preparatory to hitching them to the near-by plow with the intention of resuming plowing. While *481 the insured was thus engaged he attempted to adjust the collar on one of the horses, and he was kicked by the horse, resulting in fatal injuries.
The court submitted to the jury the question whether the insured was operating a plow, under the terms of the policy, at the time of his injury.
1. The appellant argues that the clause in the policy in reference to using or operating a plow relates back to the first part of the quoted portion of the policy so that there can be no recovery unless the injuries are "sustained by the wrecking or disablement [of the plow] * * * or by being accidentally thrown therefrom [from the plow]." With this construction we do not agree. We are of the opinion that liability would follow under the quoted language of the policy, first, in the event of an injury sustained by the wrecking or disablement of a plow upon which the insured was riding or by being accidentally thrown from such plow; and, secondly, liability would follow if the insured sustained disability while using or operating a plow (or other implements mentioned). Appellant claims that the clause "under the conditions specified in this part" relates back to the first part of the quoted portion of the policy. Perhaps this clause is somewhat ambiguous and indefinite. If so, under the well established rule, the policy, which was prepared and issued by the insurer, must be construed most favorably for the insured.
2. Was the injury suffered by the insured sustained while using or operating a plow? The plow which the insured used was of course horse-drawn. The question narrows itself down to whether, when the insured put the bridle on the one horse and attempted to adjust its collar, which had slipped down on the neck of the horse while it was attempting to eat grass, he was doing a service or work included in the term "operating" the plow. That is our question.
In Scheppmann v. Swennes,
In Wendt v. Wallace,
In Johnson v. Bergquist,
In Union Ind. Co. v. Storm,
In Stroud v. Bd. of Water Commrs.
In Gilbert v. Life Cas. Ins. Co.
In Great American Cas. Co. v. Williams,
In Gatewood v. Continental G. L. Ins. Co. (D.C.)
In Commonwealth v. Henry,
In the instant case the insured was within ten feet of the plow and was doing the necessary things preparatory to hitching his team to it. It was necessary for him to bridle the horse, and it was also necessary for him to adjust the collar. There was nothing unusual in this conduct on his part; it was incident and extremely closely related to the operation of the plow. We are of the opinion that the question whether the insured was injured while "using or operating" a plow was properly submitted to the jury, and the evidence is sufficient to support the finding that he was so injured. *484
3. The appellant assigns as error the refusal of the trial court to strike out certain testimony of plaintiff. Relative to conditions at noon on the day of the accident, plaintiff testified on direct examination as follows:
Q. "How much plowing was there remaining?
A. "Well, he would have been plowing all afternoon.
Q. "The field had been partially plowed in the morning?
A. "Yes, he had plowed all morning."
Later in the day, when plaintiff was called by defendant for cross-examination under the statute, she testified as follows:
Q. "This morning I believe you testified, Mrs. Pankonin, that your husband intended to do some plowing in the afternoon?
A. "Yes, he did. He intended to finish up that afternoon.
Q. "Did he tell you he was going to finish that plowing? * * *
A. "Yes, he did."
The defendant then moved that the testimony given by plaintiff in the morning, where she said they were going to plow the field in the afternoon, be stricken on the ground that it was hearsay. The motion was denied. We think properly so. In the answer on direct examination as to how much plowing remained to be done, the witness apparently gave her own opinion that the insured would have been plowing all afternoon. What she said on cross-examination was that the insured had told her he was going to finish that afternoon; hence the record does not disclose that the answer given on direct examination was hearsay or was in any way based upon the statement of the insured. This woman was helping in the field work and apparently had ideas of her own as to how long it would take to finish the plowing. She said it would take all afternoon. She said her husband told her he would finish that afternoon. Perhaps they were both right. Anyway, there was no error.
Affirmed. *485