84 Neb. 799 | Neb. | 1909
Action upon an accident insurance policy-. Plaintiff prevailed, and defendant appeals. In May, 1906, defendant issued an accident insurance policy on the life of Breffelt E. Taylor, and plaintiff is the beneficiary in said policy. On the 6th of August, 1906, the assured died as a result of injuries inflicted by a strobe of lightning.
There is but little, if any, conflict in the evidence. At the time the policy Avas issued and until he died Taylor’s home was in Schuyler, Nebraska, and he was in the employ of the Money Weight Scale Company as a traveling salesman selling computing scales on commission. In his application for the policy in suit Taylor gave his vocation as a traveling salesman, and stated that he devoted twelve months in the year to said business. About July 3, while following that vocation, he met Mr. Morey, an old acquaintance, in Crawford, Nebraska. Morey Avas foreman in charge of the construction of several buildings in said city, and desired to employ carpenters to assist him in said Avork. Taylor was a carpenter by trade, and told Morey that “the scale business did not pay, and he wanted a job to make a raise for a few days; then he Ayas going back to the road to try it again.” Thereupon Morey induced Taylor to Avork as a carpenter on said buildings. Taylor stored his sample cases in the hotel in CraAVford, and borroAved some tools and worked with them until he sent for and received his OAvn tools. It is claimed by defendant that Taylor Avorked continuously as a carpenter from July 3 until his death, August 6, but this is not accurate. Marshall, the employer, states that betAveen July 7 and July 14 Taylor worked but three days and eight hours, leaving at least three days during which T\, xor’s movements are not
Counsel for the respective parties cite with assurance Union Mutual Accident Ass’n v. Frohard, 134 Ill. 228. Plaintiff’s counsel argue that we should accept the definition given by Judge Baker of “occupation” as “that which occupies or engages the time or attention, the principal business of one’s life,” and apply it to the instant case, whereas counsel for defendant reason that the opinion defines the word as “the vocation, profession, trade or calling in which the assured was engaged for hire or profit,” and that the determining fact in the instant case is that Taylor worked for wages. Most of the cited cases are based upon conditions providing that the assured shall not engage in any occupation more hazardous or different from the one described in his policy. In the instant case the condition is against a change of vocation. Now, a man may have more than one vocation and engage in an additional occupation without abandoning the one described in his policy, and, if he does so, he does not necessarily change his vocation, unless the one is substituted for the other: Defendant’s by-laws contemplate that its policy holders may have more than one occupation. Membership is confined to traveling salesman, “provided he (the policy holder) is not also engaged in any other business more hazardous than tin e named.” In Stone’s Adm’rs v. United States Casualty Co., 34 N. J.
The judgment of the district court therefore is
Affirmed.