Summary
defining occupation as "a person's usual or principal work or business"
Summary of this case from Lemons v. Principal Life Ins. Co.Opinion
6 Div. 503.
November 23, 1922.
Appeal from Circuit Court, Jefferson County; J. C. B. Gwin, Judge.
C. H. Roquemore, of Montgomery, for appellant.
Defendant was due the affirmative charge as to the third count of the complaint, claiming $100 for a monument. 80 Miss. 546, 32 So. 4. Defendant should have been permitted to show what Craft was required to do under his occupation at the mine, and to show that he was required to work under the ground. It was error to sustain demurrers to pleas setting up a breach of warranty on the part of Craft. 206 Ala. 18, 89 So. 528; 89 So. 58; 206 Ala. 562, 90 So. 801.
John T. Glover and Charles A. Calhoun, both of Birmingham, for appellee.
Insurance policies are construed strictly against the insurer, and liberally in favor of the assured, especially with reference to forfeitures. 204 Ala. 667, 86 So. 737; 206 Ala. 18, 89 So. 528; 196 Ala. 327, 71 So. 404. Representations and warranties as to one's occupation or employment have reference to the time of the making thereof. Niblack, Ben. Soc. (2d Ed.) 782; 205 Ala. 601, 88 So. 865. Occupation means that which practically consumes one's time and energies, especially one's regular business or employment. The word does not necessarily mean present occupation, and temporarily engaging in another business does not result in the loss of one's occupation. 163 Ala. 518, 50 So. 958. The plaintiff, being the sole beneficiary in the certificate sued on, may recover the $100 for a monument. 7 Ala. App. 255, 60 So. 1006. The mere fact that deceased was killed while in an ore mine does not bar a recovery in this action. 19 R. C. L. 1247; 119 Mo. 653, 25 S.W. 390, 25 L.R.A. 149; 111 Wis. 279, 87 N.W. 293, 55 L.R.A. 185, 87 Am. St. Rep. 860; 127 Wis. 606, 107 N.W. 8, 7 Ann. Cas. 566.
In denial of plaintiff's right to recover under the beneficiary certificate exhibited by her, defendant sets up two defenses: (1) The invalidation of the certificate by reason of the member's warranty or representation that his occupation was that of a carpenter, when in fact he was not a carpenter; and (2) the invalidation of the certificate by reason of the member's employment in a mine, and his failure to pay the thereby increased assessment of $3.60 per annum, as required by section 43 of the constitution and laws of the society.
These defenses embraced the only contested issues of fact in the case.
Defendant's theory is: (1) That the member's representation — "my occupation is carpenter" — was a warranty that he did no work except that of a carpenter under his existing employment; and (2) that if the member regularly worked, or did any work, in the course of his employment, whether as a carpenter or otherwise, within the mine at which he was employed, this brought him within the class of "those employed in mines," within the meaning of section 43 of defendant's constitution and laws.
1. According to the New Standard Dictionary, "occupation" means "that which principally takes up one's time, thought, and energies; especially, one's regular business or employment; also, whatever one follows as the means of making a livelihood." This definition of the word has been approved by this court as its proper meaning when used in like manner in a beneficiary certificate like the one before us. Supreme Lodge, etc., v. Baker, 163 Ala. 518, 50 So. 958. In that case it was said the word was not necessarily limited in its application to one's present occupation; and that one having a regular occupation might be temporarily out of its pursuit and engaged in other business, and yet properly give his regular occupation as his true occupation.
It was further said that one who "has once had and followed an occupation continues to have it until he has abandoned it, either by quitting work in it without intention or ability to resume it, or by engaging in some other occupation not of a mere temporary character."
In Un. Mut. Acc. Ass'n v. Frohard, 134 Ill. 228, 25 N.E. 642, 10 L.R.A. 383, 23 Am. St. Rep. 664, it was said that "occupation" is "that which occupies or engages the time or attention; the principal business of one's life; vocation; employment; calling; trade." See, also, 6 Words and Phrases, 4907.
Under these principles, as applied to the evidence adduced, the jury were justified in finding that the deceased member's occupation, at the time of his application for membership and thereafter, was that of a carpenter; and hence that the certificate was not to be avoided as for a misrepresentation in that behalf.
"To be employed in anything means not only the act of doing it, but also to be engaged to do it; to be under contract or orders to do it." U.S. v. The Catherine, 25 Fed. Cas. 332, 338, No. 14755; U.S. v. Morris, 39 U.S. (14 Pet.) 464, 475, 10 L.Ed. 543; Ritchie v. People, 155 Ill. 98, 40 N.E. 454, 29 L.R.A. 79, 46 Am. St. Rep. 315. It imports, therefore, not only the status of being employed, but actual service under such employment.
2. The phrase "employed in mines" is, we think, fairly susceptible of two interpretations. According to the liberality or the strictness of judicial intendment, it may mean habitually, or customarily, or usually employed in mines (Wilson v. Gray, 127 Mass. 98, 99); or it may signify an employment which only casually or incidentally requires presence and service in mines.
In construing contracts of insurance, the settled rule in this state is:
"That courts, being strongly inclined against forfeitures, will construe all the conditions of the contract and the obligations imposed, liberally in favor of the assured, and strictly against the insurer." Tubb v. Liverpool, etc., Ins. Co., 106 Ala. 651, 660, 17 So. 615, 617.
In the application of this rule it is understood, of course, that violence will never be done to the plain meaning of the language used.
In harmony with this rule, as observed by the editor of Annotated Cases upon a review of the decisions:
"In construing insurance policies which contain provisions for changes in the occupation of the insured, or which classify risks according to occupation, it is the general rule that to be engaged in a certain occupation or employment is not inconsistent with the incidental performance of acts, either of service or pleasure, which do not come within the stated vocation of the insured, and that the doing of such acts does not operate to remove the insured from the vocation in which he is classed." Stevens v. Modern Woodmen of Am., 127 Wis. 606, 107 N.W. 8, 7 Ann. Cas. 566, note 568.
The evidence showed without dispute that the deceased member was employed in service at an ore mine at the time of his application for membership and continuously thereafter until his death in 1919 from contact with a live wire. How that accident happened, what service the deceased was performing, or whether he was performing any service at all, does not appear from the evidence.
Plaintiff testified that he was doing "carpenter work" at the mine "on the outside." In the death certificate signed by the local Consul Commander, and other officials of the order, they stated that —
"The last occupation of the deceased immediately prior to his death was that of carpenter, and that he had been engaged in such occupation for several years. His previous occupation was the same for years. He was not engaged in any hazardous or prohibited occupation."
These recitals were prima facie evidence of the facts recited, and cast on defendant the burden of disproving them. Sovereign Camp, etc., v. Marshall, 17 Ala. App. 32, 81 So. 246; Sovereign Camp, etc., v. Burrell, 204 Ala. 210, 85 So. 762.
In answering the statutory interrogatories propounded by plaintiff to defendant, its officer Yates stated that the deceased member was, at the time of his application for membership, engaged in the occupation of "handy man" in an underground mine, and worked both underground in the mine and outside; that he was employed, and in the course of his employment worked, in a mine underground. These answers, though not responsive, were introduced in evidence by plaintiff, and, of course, became evidence in the case.
One Richburg, chief clerk of the timekeeper at the mine where deceased was employed, testifying as a witness for defendant, stated that during the time from 1916 until his death deceased was carried on the company's pay roll as "handy man."
Defendant's counsel then asked him "whether or not that occupation required him to work underground in the mine." On the objection of plaintiff that "it was not what the occupation required him to do; it is what he did do," the court excluded the question, and defendant duly excepted.
We think that this ruling was clearly and prejudicially erroneous. Lexicographers define "handy man" as a man of all work; and it was competent for defendant to thus show that deceased was employed to work underground in the mine — that is, that he had undertaken, and was required, to do so. The undertaking of the worker is a material element of his employment — as much so as the doing of the work. Authorities supra.
Moreover, if one is employed in a capacity which requires him to do certain things, and he serves for a long time in that capacity, it is a reasonable inference of fact that he has done those things in the course of his service; such an inference being in accord with common knowledge and experience.
It may have been that the witness did not know the duties and requirements of deceased's employment, but that was not the ground of the objection. The objection, as framed, was not well taken, and should have been overruled.
Apart from the ruling above condemned, we find no error of material prejudice to defendant with respect to the trial of the main branch of the case. There are many assignments of error relating to adverse rulings on the demurrers to defendant's special pleas. It will suffice to say, however, that whether those rulings, or any of them, were erroneous, is not of material consequence, for the reason that defendant had the full benefit of all available defenses under the pleas which were allowed to go to the jury; and the real and only issues in the case, as to which we have recited all the evidence, were fairly submitted under appropriate instructions.
As to the separate and additional claim for $100 for the erection of a monument to the memory of the deceased member, we are clear in the conclusion that it cannot be recovered by the plaintiff in this action. The beneficiary certificate contains this paragraph, upon which the claim is founded:
"The amount, if any, remaining unpaid on this certificate at his death shall be paid to his beneficiary. There shall also be paid the sum of one hundred dollars, for the erection of a monument to his memory as provided in the constitution and laws of this society." (Italics supplied.)
Section 70 of the constitution and laws provides that —
"The Sovereign Commander shall cause to be contracted for and substantially placed to the memory of every deceased member a monument of marble or granite, * * * of the full value and cost to this society of $100."
And further that —
"When satisfactory evidence has been received by the Sovereign Commander that a monument has been erected in full compliance with the contract entered into between this society and the contractor, he shall direct that a warrant be drawn on the beneficiary [fund] in favor of the contractor in payment of the same."
These provisions not only give no support to plaintiff's asserted right to collect and administer this monument fund, but plainly deny it. No doubt the provision in the certificate, as qualified by the laws of the society, expresses a contractual obligation in favor of the beneficiary, for the breach of which an action will lie; but the complaint makes no such case. On this count of the complaint the general affirmative charge should have been given by defendant as suggested, and its refusal was error.
Our attention is called to the case of Woodmen of the World v. Wright, 7 Ala. App. 255, 60 So. 1006, wherein, upon a certificate which provided for the payment of $100 for a monument, the Court of Appeals held that that amount was due to, and recoverable by, the plaintiff beneficiary. It does not appear from the report of the case that the certificate there sued on contained the qualifying proviso found in quoted paragraph of the certificate here involved. If it did not, the decision was doubtless correct; but, if it did, the court overlooked the qualification, and was clearly in error.
For the errors noted above, the judgment will be reversed, and the cause remanded for another trial.
Reversed and remanded.
ANDERSON, C. J., and McCLELLAN and THOMAS, JJ., concur.