Opinion
July Term, 1901.
E.H. Neary, for the appellant.
Leslie W. Kernan, for the respondent.
The plaintiff was the wife of one Rees E. Thomas, a lawyer residing at Utica in the county of Oneida. He had an accident insurance policy issued by the defendant association, by which the amount of the indemnity was to be paid to the plaintiff. Thomas died from the effects of a gunshot wound on the 27th day of January, 1900. All the necessary steps were taken by the plaintiff to perfect her claim against the defendant upon the policy of insurance, and upon the failure of the defendant to pay according to its terms, she brought this action to recover the sum of $5,000, that being the amount claimed by the plaintiff to be due. The defendant answered, setting up that the death of Thomas was suicidal; that it was the result of a voluntary exposure to unnecessary danger on the part of Thomas because of the careless and reckless manner in which he handled his gun at the time his death occurred. It was also insisted that the defendant was not liable because Thomas, at the time of his death, was engaged in the handling of firearms, as by the express terms of the policy it was provided that no one should receive anything for injuries received while handling firearms.
It appeared that Thomas was classified as an attorney, and as such was insured for $5,000, and that such classification was No. 1. It appeared also that a hunter for pleasure or profit was classified in No. 6, andfor death received while so engaged the defendant was liable to pay only $1,000 instead of $5,000. The defendant insists that by a clause of the policy, which will be subsequently referred to, the plaintiff was entitled to recover only the $1,000 instead of the $5,000. All these contentions of the defendant were overruled by the trial court, and the learned justice below directed judgment to be entered for $5,000, and from the judgment thus entered this appeal is taken.
The facts completely and satisfactorily disprove the claim that Thomas committed suicide. Neither can it be said that the injuries were received while he was voluntarily exposing himself to an unnecessary danger. The voluntary exposure in such cases is not mere carelessness and recklessness, but implies that the person accused has knowingly and without reason put himself in the way of some danger from which injury is likely. ( Lehman v. Great Eastern Casualty Co., 7 App. Div. 424; affd., 158 N.Y. 689. ) The exposure in these cases to forfeit the policy must be such that it appears that the assured had in mind at the time of the accident that the act which he was doing was a dangerous one, likely to result in injury to him, and that it was entirely unnecessary. In this case while there is no doubt that the way in which Thomas managed his gun was improper, careless and reckless, there is nothing to show that he had any idea that he was exposing himself to danger by his act.
It is provided in the policy that the insurance under this contract shall not extend to cover accidental injuries or death happening while the assured is "employed in the manufacture, sale or transportation of any explosive compound, or handling firearms, unless insured to cover such employment." We are of the opinion that he was not handling firearms so as to forfeit this policy within the meaning of this provision. The defendant, seeking to bring him within that provision, is bound to prove the necessary facts. It did not prove that at the time the injury was received Thomas had touched the gun, the explosion of which caused his death. So far as appears, the gun was resting against a tree near which Thomas was sitting while eating his luncheon, and that it slipped from its position and fell and exploded in such a way as to send the charge through his heart. He was not touching the gun, nor, so far as appears, had anything to do with it. For this reason we think that the case is not brought within the condemnation of this provision of the policy.
But if this construction of the phrase be thought too narrow, and if it could be said that he was injured while handling firearms, yet we are of the opinion that the phrase does not apply to the handling of a gun, unless that is done in the course of the employment in which the assured is engaged. All these policies are to be construed most strictly against the corporation. The phrase "handling firearms" in the provision is used only in connection with certain employments, namely, the manufacture, sale or transportation of any explosive compound. It does not apply to the incidental handling of a gun for pleasure or recreation, but only when the employment of the assured calls upon him to handle firearms, and in such a case only is the policy forfeited, unless he has insurance for the employment which calls upon him to do that act.
But while we think that the defendant is not correct in insisting that the policy was forfeited, yet we are of the opinion that, under the circumstances, the plaintiff was not entitled to recover $5,000, but only the sum of $1,000, because when Thomas was killed he was engaged in hunting for pleasure, and the amount of his indemnity in such a case was, by the express terms of the policy, limited to that sum. He was insured as an attorney. In his application he stated that he understood the classification of risks, and he agreed that for any injury received "in any occupation or exposure, temporary or otherwise," classified as more hazardous than those for which he was insured, he should be entitled to receive only such amount for that particular accident as could be drawn by a member insured under such occupation or classification as laid down in the occupation manual of the association; and his agreement in the policy was that for any injury received while performing "temporarily or otherwise an act or thing pertaining to any occupation or exposure classified by this association as more hazardous than those accepted in the application on which this certificate is based, or if injured in a more hazardous occupation or exposure, the insured or beneficiary shall be entitled to recover only such amount for that particular accident as could be received by a member insured under such occupation or exposure in accordance with the classification as laid down in the occupation manual of this association."
The occupations in that manual are divided into eight classes. In the sixth is mentioned "hunter or fisher, for pleasure or profit." In another provision of the policy it is provided that "as this certificate is not forfeited in the event of a temporary change of occupation, the following indemnity will be allowed for such injury as the insured may sustain while engaged in an occupation or exposure rated by this company as more hazardous than that herein written." In that schedule on indemnities class 6 is rated at $1,000.
The defendant claims that as Thomas at the time of receiving his death wound was engaged in hunting for pleasure, and was actually exposed to the risks incident to that employment, the plaintiff is entitled to recover only so much as would be paid to one engaged in that occupation. We can see no answer to this contention. While he was classified as a lawyer, he expressly agreed that if he received an injury while doing an act pertaining to an exposure more hazardous than the one for which he was insured, his beneficiary should only receive the amount payable to those insured under that occupation. That he was at the time of his death temporarily engaged in hunting is admitted. That a hunter for pleasure is classified in the sixth class and that the amount of the indemnity for one engaged in such an occupation is $1,000 is also conceded.
It would seem, therefore, that this case comes precisely within the limitations of the policy quoted above; but it is said that the contrary of this has been held in the case of Baldwin v. Fraternal Accident Association ( 21 Misc. Rep. 124; affd., 29 App. Div. 627; 159 N.Y. 561). In that case the contract was that if the insured was injured while engaged in an occupation or employment classified as more hazardous than that accepted, his insurance should only be so much as the premium paid by him would purchase at the rates fixed for such increased hazard. It was held that the limitation only applied to a case where the assured had changed his employment, and that if he was engaged temporarily in doing some such thing he did not come within the conditions of the policy, even if that thing if pursued as an occupation would change his classification. But it will be noticed that this provision is considerably different. In the Baldwin case the indemnity was to be reduced only if the insured was engaged in some occupation or exposure involving greater hazard. In this case the indemnity is reduced if the injury is received while he is performing temporarily an act pertaining to an exposure which is classified as more hazardous. No language could be employed more apt to include this case than that which is used in this policy. It is quite clear that although at the time of his death Thomas was not engaged in the employment of a hunter, yet he was engaged in the performance of an act pertaining to that exposure, and the plaintiff is entitled to recover, and can only recover, $1,000 instead of $5,000.
The judgment must, therefore, be reversed and a new trial ordered, with costs to the appellant to abide the result of the action, unless the plaintiff will stipulate to reduce the judgment to the sum of $1,000 as of the date when it was originally rendered, and if she will so stipulate then the judgment as thus modified must be affirmed, without costs to either party in this court.
All concurred.
Judgment reversed upon questions of law and new trial ordered, with costs to appellant to abide event, unless the plaintiff stipulates to reduce the recovery to the sum of $1,000 as of the date of the decision, in which event the judgment as thus modified is affirmed, without costs of this appeal to either party.